Citation Nr: 20028499 Decision Date: 04/23/20 Archive Date: 04/23/20 DOCKET NO. 16-35 009 DATE: April 23, 2020 ORDER Entitlement to an initial rating in excess of 50 percent prior to August 3, 2016, for service-connected hepatitis C with cirrhosis of the liver and portal hypertension is denied. Entitlement to an initial rating of 100 percent from August 3, 2016, for service-connected hepatitis C with cirrhosis of the liver and portal hypertension is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to August 3, 2016, is remanded. FINDINGS OF FACT 1. For the appeal period prior to August 3, 2016, the Veteran’s service-connected hepatitis C with cirrhosis of the liver and portal hypertension was manifested by a history of one episode of ascites and daily fatigue, anorexia, and malaise. 2. For the appeal period from August 3, 2016, the Veteran’s service-connected hepatitis C with cirrhosis of the liver and portal hypertension is manifested by near-constant debilitating symptoms. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent prior to August 3, 2016, for service-connected hepatitis C with cirrhosis of the liver and portal hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.112, 4.114, Diagnostic Codes 7312-7354. 2. The criteria for an initial rating of 100 percent from August 3, 2016, for service-connected hepatitis C with cirrhosis of the liver and portal hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.112, 4.114, Diagnostic Codes 7312-7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1971 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2020, the Veteran requested that his case be advanced on the docket (AOD) due to his serious illness. The Board herein grants the Veteran’s motion. Furthermore, the Board notes that new evidence has been added to the record after the July 2017 supplemental statement of the case (SSOC). In a March 2020 appellate brief, the Veteran waived initial review by the Agency of Original Jurisdiction (AOJ) of this new evidence. The Board notes that, in a March 2020 appellate brief, the Veteran’s representative raised the issue of a TDIU when he asserted that the Veteran was unable to maintain substantially gainful employment due to his service-connected disability. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, this issue is within the jurisdiction of the Board. 1. Entitlement to an initial rating in excess of 50 percent prior to August 3, 2016, for service-connected hepatitis C with cirrhosis of the liver and portal hypertension. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). Currently, the Veteran’s service-connected hepatitis C with cirrhosis of the liver and portal hypertension has been rated at 50 percent prior to August 3, 2016, and 70 percent from August 3, 2016, under 38 C.F.R. § 4.114, Diagnostic Codes 7312-7354. Under Diagnostic Code 7312 (cirrhosis of the liver), a 50 percent evaluation is warranted for history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). 38 C.F.R. § 4.114, Diagnostic Code 7312. A 70 percent evaluation is warranted for 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. Id. A 100 percent evaluation is warranted for generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractories to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). Id. Note 1 to Diagnostic Code 7312 provides that, for rating 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. Under Diagnostic Code 7354 (hepatitis C), a 40 percent evaluation is assigned for 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 60 percent evaluation 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. Id. A 100 percent evaluation is assigned when there are near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. With regard to the notes following Diagnostic Code 7354, under Note (1): Evaluate sequelae, 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. (See 38 C.F.R. § 4.14). Note (2): 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. For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer; and the term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight sustained for three months or longer. The term “inability to gain weight” means that there has been substantial weight loss with inability to regain it despite appropriate therapy. “Baseline weight” means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.113. In May 2015, the Veteran was afforded a VA examination for hepatitis, cirrhosis and other liver conditions. The Veteran was diagnosed with hepatitis C with cirrhosis of the liver and portal hypertension. Cirrhosis of the liver was treated with Harvoni. The Veteran’s current symptoms were fatigue, lethargy, decreased endurance, and ascites drainage. Continuous medication was required for control of the Veteran’s liver condition. He used Harvoni and diuretics for portal hypertension. The VA examiner noted that the Veteran currently had signs or symptoms attributable to chronic or infectious liver diseases. These symptoms included: fatigue that occurred daily; daily malaise; and daily anorexia. The Veteran never had any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver conditions during the past 12 months. The Veteran had signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing of cholangitis. These symptoms were: daily weakness; daily anorexia; daily malaise; portal hypertension; and ascites with periods of remission between attacks. The VA examiner noted that the Veteran was a good candidate to receive a liver transplant. The examiner opined that the Veteran’s condition impacted his ability to work due to the severe fatigue and decreased stamina and endurance. In July 2015, the Veteran submitted a NOD. The Veteran reported that in addition to his right quadrant pain he lived with daily, he had significant weight loss in the last year. He was at 155 pounds and was now at 140 pounds at 5’7”. The chronic fatigue was debilitating and caused him great distress. He wanted to be able to do more, but he was always too tired. In August 2017, the Veteran was afforded a VA examination for hepatitis, cirrhosis, and other liver conditions. The VA examiner noted that the Veteran had been diagnosed with hepatitis C with cirrhosis of the liver and portal hypertension in 2007. Continuous medication was not required for control of the Veteran’s liver condition. Due to his liver disease, the Veteran had near-constant and debilitating fatigue, malaise, nausea, and weight loss. His baseline weight was 140, and his current weight was 120. His weight loss had been sustained for three months or longer. The Veteran also had hepatomegaly. However, the Veteran did not have any incapacitating episodes due to liver conditions during the past 12 months. Symptoms that were attributable to cirrhosis of the liver included near-constant and debilitating weakness, anorexia, malaise, and weight loss. The Veteran also had portal hypertension, persistent jaundice, and ascites following refractory treatment. The Veteran’s liver condition impacted his ability to work. He was debilitated due to weakness, weight loss, malaise, and weakness to the point that he was in his home always and barely able to execute the duties of daily activity. The VA examiner noted that there were now debilitating symptoms of malaise, fatigue, and weight loss that were not present at the time of the last VA examination. For the appeal period prior to August 3, 2016, a rating in excess of 50 percent is not warranted for the Veteran’s service-connected hepatitis C with cirrhosis of the liver and portal hypertension under 38 C.F.R. § 4.114, Diagnostic Codes 7354 or 7312. On the Veteran’s May 2015 VA examination, the VA examiner reported that the Veteran had near-constant and debilitating fatigue, malaise, nausea, and weight loss. His baseline weight was 140, and his current weight was 120. His weight loss had been sustained for three months or longer. However, the Veteran did not have any incapacitating episodes. He had ascites with periods of remission between attacks. Based on this evidence during the appeal period prior to August 3, 2016, the Veteran has not shown near-constant debilitating symptoms or a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. Furthermore, the Veteran’s weight loss would not be considered substantial under 38 C.F.R. § 4.112. Therefore, a rating in excess of 50 percent is not warranted. The Board has also considered the statements of the Veteran regarding the severity of his hepatitis C and acknowledges that he is competent to report the occurrence of observable events or the presence of a disability or symptoms of a disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159 (a)(2) (2018); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran, when considered in the full context of his treatment records and VA examination reports, do not meet the burden for a higher rating with respect to determining the severity of the Veteran’s hepatitis C with cirrhosis of the liver and portal hypertension. 2. Entitlement to an initial rating of 100 percent from August 3, 2016, for service-connected hepatitis C with cirrhosis of the liver and portal hypertension. For the appeal period from August 3, 2016, a rating of 100 percent is warranted for the Veteran’s service-connected hepatitis C with cirrhosis of the liver and portal hypertension. On the Veteran’s August 2017 VA examination, the VA examiner noted that the Veteran had near-constant and debilitating fatigue, malaise, nausea, and weight loss. He was debilitated such that he was always at home and barely able to execute the duties of daily activity. The VA examiner specifically noted that there were now debilitating symptoms of malaise, fatigue, and weight loss that were not present at the time of the last VA examination. The VA examiner also noted that the Veteran had ascites following refractory treatment. The Veteran’s symptoms most closely approximates the rating criteria for a 100 percent under 38 C.F.R. § 4.114, Diagnostic Code 7354. Thus, the Board finds that a rating of 100 percent is warranted for the Veteran’s service-connected hepatitis C with cirrhosis of the liver and portal hypertension. REASONS FOR REMAND 1. Entitlement to a TDIU prior to August 3, 2016, is remanded. As noted above, the Veteran’s representative contends that his service-connected hepatitis has impacted his ability to secure or follow a substantially gainful occupation. As the Board has granted a 100 percent rating for the Veteran’s hepatitis, and as this is his only service-connected disability, the issue is moot from August 3, 2016 and thereafter. Prior to that point, the record is less clear. To date, the Veteran has not submitted a formal application for a TDIU. Though not strictly required, the variables that affect such a rating – like the Veteran’s work history, his education, and special skills – are all included on the application. Thus, any failure to furnish the application may result in a denial of the Veteran’s claim or on a decision being based on an incomplete factual record. Further, the Veteran does not meet the schedular criteria for a TDIU prior to August 3, 2016. A TDIU may still be awarded for this period; but before the Board may grant such an award, the case must be referred to the Director, Compensation Service for extraschedular consideration. Considering that the evidence is not yet clear as to whether, prior to August 3, 2016, the Veteran was gainfully employed or not, any such referral would be premature at this time. If, however, the Veteran submits evidence that he was not gainfully employed for this period, then the AOJ should refer the case for extraschedular consideration. This instruction is explicitly not a finding that the criteria for such a rating have been met. Instead, as the case is being remanded now, and as the Veteran’s case has been advanced on the docket, the Board wants to ensure that there will be as few remands as possible. Obtaining an extraschedular opinion from the Director will ensure that all options are open to the Board if the case is returned from remand. The matters are REMANDED for the following action: 1. Request the Veteran to complete and return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. If the Veteran returns the completed application, conduct any necessary development stemming from that application. 3. If the Veteran returns the completed application, and the evidence suggests that the Veteran was not gainfully employed prior to August 3, 2016, then refer the issue of entitlement to a TDIU to the Director of Compensation Service for extraschedular consideration. Then, readjudicate the issue. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should then be returned to the Board, if in order, for further review. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.