Citation Nr: 20041990 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 19-25 299 DATE: June 19, 2020 ORDER An effective date of July 9, 2018 for the grant of a 30 percent rating for hepatitis E with cirrhosis, portal hypertension and splenomegaly, is granted. The claim for higher rating than 30 percent for hepatitis E with cirrhosis, portal hypertension and splenomegaly, is denied. FINDINGS OF FACT 1. On July 9, 2018, it was factually ascertainable that the Veteran’s hepatitis E with cirrhosis, portal hypertension, and splenomegaly increased in severity. 2. The Veteran’s condition was not specifically manifested by the following: any history of episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy; weight loss, hepatomegaly, or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for an effective date of July 9, 2018, for the assignment of a 30 percent rating for hepatitis E with cirrhosis, portal hypertension, and splenomegaly have been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). 2. The criteria are not met for a higher rating than 30 percent for hepatitis E with cirrhosis, portal hypertension and splenomegaly. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Codes 7312, 7354 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from June 2003 to September 2013. By the May 2020 written brief presentation, the Veteran’s representative indicated waiver of Regional Office (RO) original jurisdiction over any new evidence provided in support of the claim. Based on the statement and the representative having reviewed the file, the Board construes this as including waiver of VA Medical Center (VAMC) records that the RO had obtained. 38 C.F.R. §§ 20.300(b) (2019). The claim for an effective date prior to October 31, 2018 for the grant of a 30 percent rating for hepatitis E with cirrhosis, portal hypertension, and splenomegaly On September 28, 2013, the Veteran filed a claim for service connection for hepatitis E with cirrhosis, portal hypertension, and splenomegaly. In a December 2013 rating decision, the AOJ granted service connection and assigned an initial noncompensable disability rating, effective September 28, 2013. That rating decision became final. On October 31, 2018, the Veteran filed an increased rating claim for his hepatitis E with cirrhosis, portal hypertension and splenomegaly. In a November 2018 rating decision, the AOJ increased his rating from noncompensable to 30 percent, effective the date of his claim, which was October 31, 2018. In February 2019, the Veteran filed a timely Notice of Disagreement and challenged both the disability rating and the effective date assigned. Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2018). The Veteran does not assert, nor does the record show, that he filed a formal or claim for an increased rating for his hepatitis E prior to October 31, 2018 but after September 28, 2013. An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period prior to the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2018); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). Under these circumstances, the effective date of the award is the earliest date at which it was factually ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2018); Harper v. Brown, 10 Vet. App. 125, 126 (1997). If the increase occurred more than one year prior, the increase is effective the date of the claim. Gaston, 605 F. 3d at 980; see also Harper, 10 Vet. App. at 126-127. The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran’s claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). The evidence of record going back to October 31, 2017 shows that on July 9, 2018, he reported increased fatigue and shortness of breath. On July 20, 2018, the Veteran had been scheduled for a splenectomy later that week, but it had to be canceled due to his underlying liver disease. He reported additionally feeling “significantly much more short of breath and tired.” His prescription for prednisone was continued, and an additional daily medication was added for relief of symptoms. Laboratory testing done that same day showed that his liver chemistry was mildly elevated. These symptoms show an increase in severity during the one year prior to his October 31, 2018 claim. The earliest it was factually ascertainable that his disability had gotten worse was July 9, 2018, when he reported an increase in fatigue and shortness of breath. For this reason, an effective date of July 9, 2018, is granted. In his February 2019 NOD, the Veteran asserts that the effective date of his 30 percent rating should be September 28, 2013, the date of his claim for service connection fr his disability. He argued that he was misdiagnosed and evaluated for the wrong disability. As discussed above, the regulations governing effective dates for increased ratings apply in this case, which permit the Board to examine the evidence during the one year prior to his increased rating claim from October 31, 2018 to determine if there was an increase in severity during that time. The Veteran did not challenge the noncompensable rating assigned in the December 2013 tating decision which granted the initial rating, and that rating decision is now final. He has not argued that the Deember 2013 rating decision contained clear and unmistakable error (CUE) as an attack on its finality. For these reasons, an effective date of July 9, 2018, but no earlier, for the assignment of a 30 percent disability rating for hepatitis E is granted. The claim for higher rating for hepatitis E with cirrhosis, portal hypertension and splenomegaly Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. The condition for which the Veteran has been adjudicated as service-connected is that of portal hypertension and splenomegaly (previously rated as history of hepatitis E and early cirrhosis per biopsy). Originally, that condition was considered under 38 C.F.R. § 4.114, Diagnostic Code 7312 for cirrhosis of the liver, and it has since been updated to Diagnostic Code 7354 for hepatitis C. Both relevant diagnostic codes are indicated below. Under Diagnostic Code 7312, a 10 percent rating applies where there are symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating applies where there is portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating applies where there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating applies where there is a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks. A 100 percent rating applies where there is generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). For purposes of evaluating conditions under Diagnostic Code 7312, “documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present.” 38 C.F.R. § 4.114, Diagnostic Code 7312, Note. The Veteran’s service-connected disability involving liver function, currently characterized as involving portal hypertension and splenomegaly, has been more recently evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354. Under Diagnostic Code 7354, a noncompensable rating is assigned for asymptomatic HCV. A 10 percent rating requires intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12- month period. A 20 percent rating requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating requires daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating requires serologic evidence of HCV infection and the following signs and symptoms due to the HCV infection: near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). According to Note (1) in this Diagnostic Code, evaluate sequelae (i.e., residuals), such as cirrhosis or malignancy of the liver, under an appropriate Diagnostic Code, but do not use the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354 and under a Diagnostic Code for sequelae. (This would violate VA’s anti-pyramiding regulation. See 38 C.F.R. § 4.14). Note (2) provides that for purposes of evaluating conditions under Diagnostic Code 7354, an “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. As to the relevant time period from July 9, 2018 onwards, the Board further finds that a 30 percent rating remains the highest applicable evaluation, per the VA rating criteria. Per Diagnostic Code 7312, a 50 percent rating applies where there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). In this case, based on mostly recent VA examination from 2018, as encapsulated below, none of the foregoing are shown for purposes of Diagnostic Code 7312. Nor does the Veteran demonstrate the grounds for a higher 40 percent rating for hepatitis. Under the corresponding Diagnostic Code 7354 (or also Diagnostic Code 7345 with the same criteria, if discussion is of a generalized hepatitis), the following is required for a 40 percent rating: daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. The November 2018 VA Compensation and Pension examination report indicates the diagnosis at outset of autoimmune hepatitis, and cirrhosis of the liver. Further notated under the category of other liver conditions was a history of hepatitis E and early cirrhosis, portal hypertension, and splenomegaly. The current symptoms were fatigue, weakness, and right upper quadrant abdominal pain. There was no treatment at this time. Continuous medication was not required for the liver condition. There were further noted as current objective symptoms, fatigue (daily), malaise (daily), nausea (intermittent), vomiting (intermittent), arthralgia (daily), right upper quadrant pain (daily). There was no diagnosis of hepatitis C. There were not any incapacitating episodes of the condition. Also present were portal hypertension and splenomegaly. The Veteran had not undergone a liver transplant. There were no other pertinent physical findings, complications, conditions, signs or symptoms. An MRI showed a series of findings compatible with cirrhosis with splenomegaly and evidence of portal hypertension. No focal liver lesions were seen. A CT scan of the abdomen and pelvis showed an enlarged spleen, and that the liver was nodular / lobular contour but otherwise remarkable in appearance. A liver biopsy had been performed and showed no evidence of cirrhosis, or portal hypertension present. There were no other significant diagnostic test findings. There was no impact on ability to work. The updated diagnosis was portal hypertension and splenomegaly. An October 2018 VA record noted that the Veteran had “gained a significant amount of weight over the last several months.” A January 2020 VA hematology and oncology note stated that the Veteran continued to have fatigue, and had no major changes in appetite, energy, or weight. As indicated, the criteria for increase are not met. For one, per application of Diagnostic Code 7312, there was not present for a 50 percent rating, any history of episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. Next, applying Diagnostic Code 7354 as warranted, the absence of any weight loss, hepatomegaly and/or the lack of any incapacitating episodes is determinative. The record shows that the Veteran gained weight, not lost weight, during the appeal period. Therefore the 40 perent criteria in Diagnostic Code 7354 are not met. For these reasons, a 30 percent rating remains the accurate determination of level of compensation. The preponderance of the evidence is against this claim. 38 C.F.R. § 4.3 (2019). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.