Citation Nr: 20077182 Decision Date: 12/04/20 Archive Date: 12/04/20 DOCKET NO. 15-25 856 DATE: December 4, 2020 ORDER 1. Service connection for cirrhosis of the liver is denied. 2. Entitlement to a compensable rating for hepatitic C with liver fibrosis prior to February 21, 2017 and a rating in excess of 60 percent, thereafter, is denied. 3. Entitlement to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran does not have a disability of cirrhosis of the liver during the appellate period. 2. Prior to February 21, 2017, the Veteran’s hepatitis C with liver fibrosis was not characterized by 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. 3. From February 21, 2017, the Veteran’s hepatitis C with liver fibrosis was not characterized by near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 4. The Veteran’s service-connected disabilities meet the schedular requirements for a TDIU and preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for cirrhosis of the liver are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 2. Prior to February 21, 2017, the criteria for a compensable evaluation of for hepatitis C with liver fibrosis are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7312, 7354 (2016). 3. From February 21, 2017, the criteria for a rating in excess of 60 percent for hepatitis C with liver fibrosis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Codes 7312, 7354 (2019). 4. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the U.S. Navy from November 1973 to June 1974 and on active duty from May 1975 to November 1976. These matters come to the Board of Veterans’ Appeals (Board) from a June 2014 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued remand orders in September 2018 for more development. The Board finds that its remand instructions have been met with substantial compliance. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weight its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nevertheless, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Service connection for cirrhosis of the liver The Veteran contends that he has cirrhosis of the liver due to his service-connected hepatitis C. For service connection to be granted there must be a current disability. As will be explained below, the Board finds that there is no competent medical evidence diagnosing the Veteran with cirrhosis of the liver. The Veteran’s date of onset for hepatis C was in January 2006. See May 2010 VA Examination. Regarding cirrhosis of the liver, the Veteran was first provided a VA examination in November 2013. The VA examiner did not diagnose cirrhosis of the liver. Rather, the VA examiner diagnosed the Veteran with liver fibrosis with a date of diagnosis of May 2007. See November 2013 C&P Exam. The Veteran’s claim for cirrhosis was subsequently denied, and the Veteran submitted a timely notice of disagreement (NOD). The Veteran was provided another VA examination in February 2017, in which the Veteran was again not diagnosed with cirrhosis of the liver. See February 2017 C&P Exam. The Board subsequently issued remand orders in September 2018 in which the remand instructions called for a new VA examination to be conducted. As per Board remand instructions, the Veteran was afforded a VA examination in November 2019. There, the VA examiner conducted an in-person examination, reviewed the Veteran’s medical records and considered his lay statements. The VA examiner did not provide a diagnoses of cirrhosis, but rather diagnosed the Veteran with hepatis C and fibrosis. The VA examiner opined that the Veteran’s fibrosis was secondary to the Veteran’s hepatitis C. See November 2019 C&P Exam. The Board notes that fibrosis and cirrhosis are different medical conditions, and that the Veteran’s fibrosis was granted service connection and rated as part of his hepatitis C condition. See October 2020 Rating Decision – Codesheet. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In addition to the Veteran’s numerous VA examinations, the Board has reviewed the Veteran’s medical records. A thorough review has not revealed any diagnosis of cirrhosis during the appellate period. In the absence of a currently diagnosed disability, service connection may not be granted. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board finds that the evidence weighs against a finding of a current disability and service connection must therefore be denied. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s hepatitis C with liver fibrosis is rated analogous to cirrhosis of the liver is rated at 0 percent where the disability is non-symptomatic. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 10 percent rating applies where there is 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. Id. A 20 percent rating applies where there is 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. Id. A 40 percent evaluation applies where there are symptoms such as 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. Id. A 60 percent rating applies where there are symptoms such as 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. Id. A 100 percent rating applies where there are symptoms such as near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Compensable ratings of 10, 20, 40, and 60 percent all require: 1) fatigue, malaise, and anorexia, or 2) incapacitating episodes lasting a week or longer. Entitlement to a compensable rating for hepatitis C In August 2010, the RO granted service connection for hepatitis C and assigned a noncompensable rating, effective in March 2006. The Veteran submitted a claim for an increased rating for his service-connected hepatitis C in January 2012. The Board has considered all evidence up to a year prior. In November 2013 the Veteran was provided a VA examination. There, the VA examiner found that the Veteran’s hepatitis C was in remission and that the Veteran experienced no incapacitating episodes; no fatigue, malaise, nausea, vomiting, anorexia, arthralgia or pain. See November 2013 C&P Exam, pp. 1-2. A review of the Veteran’s medical records does not show any evidence during this period of the appeal that contradicts the findings of the November 2013 VA examiner. The Veteran was next afforded a VA examination in June 2014. There the VA examiner indicated that the Veteran did not have any signs or symptoms attributable to chronic or infectious liver diseases. The VA examiner noted that the Veteran did not suffer from fatigue, malaise, anorexia, nausea, vomiting, arthralgia, weight loss, hepatomegaly or pain. See June 2014 C&P Exam. The Veteran’s claim was denied and the Veteran appealed. He was next afforded a VA examination in February 2017. There, the VA examiner found that the Veteran suffered from daily weakness and intermittent anorexia, without malaise, pain or weight loss. No dietary restrictions were noted. See February 2017 C&P Exam, p. 4. In its September 2018 remand, the Board noted that the February 2017 VA examination findings were not consistent with the Veteran’s medical record. A thorough review of the Veteran’s medical record shows that the Veteran reported “occasional dizziness and weakness due to being sick” in October 2015 and then leg weakness in December 2015. However, the Veteran subsequently denied any weakness in December 2016, April 2018, October 2018. See September 2019 CAPRI, pp. 131, 152, 287, 404. The record is inconsistent on the Veteran’s level of fatigue. The Veteran reported suffering from increased fatigue in January 2017, then denied fatigue in June 2017, and reported fatigue again in August 2017. Id at 152, 234, 263. Due to these inconsistencies between the February 2017 VA examination findings and the medical record, the Board ordered a new VA examination to be provided. See September 2018 BVA Decision. As per Board remand orders, a new VA examination was provided in November 2019. At the examination the “Veteran state[d] condition has not improved since he underwent interferon and ribavirin 2008. Veteran state[d] he is always fatigue and has anxiety.” The VA examiner found that the Veteran suffered from daily fatigue, intermittent anorexia and intermittent nausea. No dietary restrictions were noted. See November 2019 C&P Exam. The Board has conducted a review of the Veteran’s medical record. The record shows complaints of fatigue and nausea, which is consistent with the findings of the November 2019 VA examination. See September 2019 CAPRI, pp. 19, 25, 31. Furthermore, the Board notes that in December 2018 the Veteran sought medical treatment for “severe abdominal pain, dizziness and malaise” that had lasted for 5 days. Id at 121. In August 2020, the RO granted the Veteran an evaluation of 60 percent for hepatitis C with liver fibrosis, with an effective date of February 21, 2017. See August 2020 Rating Decision – Narrative. The question before the Board is whether a compensable rating is warranted prior to February 21, 2017 and whether a rating in excess of 60 percent rating is warranted thereafter. The Board finds that the record is not sufficient to find that prior to February 21, 2017 the Veteran experienced 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. To the contrary, the probative evidence of record shows continual denials of fatigue, malaise and pain along with inconsistent reporting of fatigue and weakness beginning in 2017. As such, the Board finds that the record is not sufficient to warrant a compensable rating before February 21, 2017. Furthermore, following the February 21, 2017 VA examination, the record fails to show that the Veteran suffered from near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Rather, the evidence of record shows fatigue, nausea and malaise that was either daily or intermittent in nature, which is consistent with the Veteran’s 60 percent rating. Therefore, prior to February 21, 2017 the Veteran’s service-connected hepatitis C did not warrant a compensable rating. From February 21, 2017 the Veteran’s service-connected hepatitis C did not warrant a 100 percent rating. TDIU All Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16 (2016). A finding of total disability is appropriate when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R.§§ 3.340(a)(1), 4.15. In order to establish entitlement to TDIU due to service- connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2006). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful” employment is employment that is “ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” See Moore v. Derwinski, 1 Vet. App. 356, 358 (adding that the definition of substantially gainful employment suggests a living wage). Marginal employment is not considered substantially gainful employment. See 38 C.F.R. § 4.16 (a); See also Moore, 1 Vet. App. at 358 (“The ability to work only a few hours a day or only sporadically is not the ability to engage in substantially gainful employment.”). A TDIU may be assigned if the schedular rating is less than total when it is found that the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. See 38 C.F.R.§§ 3.340, 3.341, 4.16(a). If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16 (a). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16 (a). Id. Where the schedular criteria set forth above are not met, but a Veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). Although entitlement to extraschedular TDIU is determined in the first instance by VA’s Compensation Service Director, the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. Id.; See Bowling v. Principi, 15 Vet. App. 1, 10. That threshold determination must be supported with “a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.” See 38 C.F.R. § 4.16 (b). A TDIU claim presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for a TDIU because of subjective factors that the objective rating does not consider. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Thus, in evaluating a Veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairments caused by non-service-connected disabilities. 38 C.F.R. § § 3.341 (a), 4.16, 4.19. Finally, the Court has held that a request for a TDIU, whether raised expressly by a Veteran or reasonably raised by the record, is not a separate claim for benefits. See Rice v. Shinseki, 22 Vet. App. 447, 453. Instead, it involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or as part of a claim for increased compensation. See id. (adding that the distinction is important for purposes of assigning an effective date for an award of compensation). When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it may be considered part of the claim for benefits of the underlying disability. See id. at 454; See also Mayhue v. Shinseki, 24 Vet. App. 273, 281-82. Entitlement to TDIU As an initial matter, a Veteran meets the schedular requirements when there is one disability rated at 60 percent or more, or multiple disabilities with at least one being rated at 40 percent and with a combined rating of at least 70 percent. 38 C.F.R. § 4.16 (a). The Veteran met the schedular requirements set out in 38 C.F.R. §§ 3.340, 3.341, 4.16(a) for TDIU from December 6, 2012, as from that point in time the Veteran had a combined rating of 90 percent with a singular rating at 70 percent. The Veteran submitted his claim for TDIU in March 2014. In doing so, the Veteran reported working as a self-employed carpenter from 2008 to 2013, a position in which he worked 40 to 60 hours per week. The Veteran reported becoming too disabled to work in 2013. He stated “I am currently not able to work. I have had renal cell carcinoma, partial nephrectomy and kidney cancer.” See March 2014 VA 21-8940. A review of the record shows that the Veteran had “some college” education. See March 2014 CAPRI, p. 15. Furthermore, the Veteran’s full employment is as follows: from 1973 -1976 the Veteran was in the United States Navy, from 1976 to 1980 he worked in an oil field, from 1980 to 1983 he was a self-employed carpenter, and from 1983 to approximately 2012 or 2013 he was a self-employed home remodeler. See CAPRI, p. 8. The question then, is at what point the evidence shows that the Veteran was unable to obtain and sustain substantial employment. The Board notes that the Social Security Administration (SSA) determined that the Veteran “became disabled under our rules on January 1, 2018.” See January 2019 SSA/SSI Letter. However, the record does not indicate on what basis the SSA reached this determination or what evidence was considered. As such, the Board affords the SSA letter limited probative value. Of more probative value is a December 2013 VA examination, in which a VA examiner considered the functional impact of the Veteran’s service-connected hepatitis C and its related disabilities. There, the VA examiner found that the “Veteran does not have functional impairment attributable to his service-connected hepatitis C and its complications that impairs substantially gainful physical employment…[nor]…sedentary employment.” However, the VA examiner did find that the “Veteran has a functional impairment attributable to his peripheral neuropathy that impairs substantially gainful physical employment to include lifting, no standing for long periods, no climbing ladders, no walking long distances, no repetitive squatting or bending. Veteran does not have a functional impairment attributable to his non-service-connected peripheral neuropathy that impairs substantially gainful sedentary employment.” See February 2014 CAPRI, p. 8. These findings were echoed in a June 2014 VA examination that was provided to the Veteran. There, the VA physician stated: “The podiatrist in Corpus Christi Tx where [the Veteran] lives says he is unemployable in any profession but especially in his usual profession as a home remodeling contractor due to the severe nerve damage in both legs. He cannot work in sedentary or physical employment due to instability of station (fall risk esp for ladders), chronic incapacitating leg pain and loss of sensation. He cannot drive (total loss of sedentary and physical employment) due to loss of feeling and chronic pain makes him unable to do any driving, sit for employment or function [standing] or walking (uses cane regularly for all ambulation. This bilateral neuropathy condition became severe over 18 months ago and he has not been able to work since mid-2012. The cause of this neuropathy is toxicity from interferon therapy for his service-connected hepatitis C.” See June 2014 C&P Exam. The Board finds that the June 2014 medical opinion regarding the Veteran’s ability to work is of significant value, as the physician conducted an in-person examination, reviewed the Veteran’s medical records, considered his lay statements, and provided the Board with a detailed rationale. Furthermore, the Board finds that the June 2014 opinion is supported by the record. Specifically, in a November 2014 podiatry procedure note, the record shows that the Veteran sought treatment for peripheral neuropathy. Based upon that disability, a VA podiatrist opined that “given the current level of impairment employment is unlikely.” Id at 31. The Veteran was subsequently granted service connection for peripheral neuropathy in October 2020, with an effective date of December 6, 2012. See October 2020 BVA Decision. Given that the probative evidence of record shows that the Veteran has inability to station, an inability to drive, and a profound difficulty of ambulation, it is unlikely that the Veteran could secure or follow a substantially gainful occupation consistent with his educational level and occupational experience. Accordingly, the Board finds that the competent evidence, when considered as a whole, is at least in equipoise with respect to the issue of whether the Veteran is unemployable due to the effects of his service-connected disabilities. He reported that he worked until approximately 2013. As the effective date for service connection for peripheral neuropathy and for a panic disorder (rated as 70 percent) was December 6, 2012, the Board finds that entitlement to a TDIU is granted, based on the combined effects of all disabilities, effective from December 6, 2012 to February 21, 2017 when he was awarded a 100 percent combined schedular rating. A TDIU rating thereafter is moot as the rating was assigned for the combined impairment from all disabilities and special monthly compensation is not indicated. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, Associate 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.