Citation Nr: 21000666 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-43 422 DATE: January 5, 2021 ORDER From the date of reduction, restoration of the 100 percent rating for hepatitis C with cirrhosis of the liver, status post liver transplant, is granted. FINDING OF FACT At the time of the reduction in rating, the Veteran had not undergone a thorough examination, and the record did not show an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of the 100 percent rating for hepatitis C with cirrhosis of the liver, status post liver transplant, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.10, 4.118, Diagnostic Code 7351 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in November 2019, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Rating Reductions Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When reduction in the evaluation of a service-connected disability is contemplated, and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, a final rating action will be taken, and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions must be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In any rating reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow all reduction cases, “regardless of the rating level or the length of time that the rating has been in effect”). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). For ratings that have continued at the same level for five years or more, it is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. 38 C.F.R. § 3.344(a). Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Id. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, where material improvement in the condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. If doubt remains, after according due consideration to all the evidence developed, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). 1. Propriety of the reduction in the rating for hepatitis C with cirrhosis of the liver, status post liver transplant, from 100 percent to 30 percent, effective September 1, 2014 Prior to undergoing a liver transplant, the Veteran’s service-connected hepatitis C with cirrhosis of the liver was assigned a 70 percent rating under Diagnostic Code 7354, relating to hepatitis C, and he was in receipt of a total disability rating based on individual unemployability (TDIU) due to hepatitis C with cirrhosis of the liver since May 29, 2009. Beginning October 13, 2011, a 100 percent rating was assigned under Diagnostic Code 7351, relating to liver transplants. Effective September 1, 2014, the rating assigned for hepatitis C with cirrhosis of the liver, status post liver transplant, was reduced to 30 percent, and TDIU was not reinstated. With consideration of the award of TDIU, the Veteran has effectively been in receipt of a 100 percent rating for his service-connected hepatitis C with cirrhosis of the liver, status post liver transplant, for more than five years. Therefore, the provisions of 38 C.F.R. § 3.344 apply. Under Diagnostic Code 7351, a liver transplant warrants a 100 percent rating for an indefinite period from the date of hospital admission for transplant surgery, followed by a minimum 30 rating. 38 C.F.R. § 4.118, Diagnostic Code 7351. A Note to Diagnostic Code 7351 indicates that a rating of 100 percent shall be assigned as of the date of hospital admission for transplant surgery and shall continue. One year following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e). 38 C.F.R. § 4.118, Note to Diagnostic Code 7351. Upon review of the record, the Board finds that restoration of the 100 percent rating for hepatitis C with cirrhosis of the liver, status post liver transplant, is warranted. The Veteran underwent a liver transplant in October 2011. He was prescribed Sulfamethoxazole and Tacrolimus for the prevention of rejection and discharged from the hospital in November 2011. During a December 2011 VA examination, he endorsed symptoms of daily fatigue and malaise; intermittent vomiting, arthralgia, and right upper quadrant pain; and six or more weeks of incapacitating episodes. A 100 percent rating was subsequently granted for a liver transplant, effective October 13, 2011. In February 2012, the Veteran was re-admitted to the hospital overnight with complaints of severe abdominal pain, and he underwent a stent placement due to a bile leak. Thereafter, he was monitored closely and underwent weekly blood draws. In April 2012, the biliary stent was removed. In November 2012, the Veteran’s physicians noted a recent trend in rising liver function tests. In January 2013, a VA examiner reviewed the medical evidence of record and provided a report. The examiner indicated that there was no evidence of transplant rejection, but noted that the Veteran’s liver function tests were recently elevated. The examiner also indicated that the Veteran’s hepatitis C resulted in symptoms of daily fatigue, arthralgia, malaise, and weakness, and his service-connected liver conditions impacted his ability to work in that they caused excessive fatigue and a frequent need to rest. Subsequent VA treatment records show that a biopsy performed in February 2013 revealed acute cellular rejection. Later that month, the Veteran completed a steroid recycle, and his liver function tests showed some improvement. From April 2013 to November 2013, the Veteran’s liver function tests continued to improve. In January 2014, it was noted that the Veteran’s labs were stable. An April 2014 transplant follow-up note indicates that the Veteran was clinically stable, but he continued to have symptoms of fatigue, arthralgias, and back pain. In June 2014, the Veteran was advised that the rating for a liver transplant would be reduced to 30 percent, effective September 1, 2014. Following the reduction in rating, a December 2014 VA treatment record shows that the Veteran had a high viral load for hepatitis C. In February 2015, he began treatment for hepatitis C with Harvoni and Ribavirin, and he continued to undergo immunosuppressive therapy with Sulfamethoxazole and Prograf/Tacrolimus to prevent transplant rejection. In March 2015, the Veteran reported intense fatigue and decreased energy. In April 2015, he reported feeling exhausted for a couple days after attempting to work in his yard. In May 2015, he reported feeling so fatigued that he could not keep up with picking the tomatoes growing in his garden. In July 2015, the Veteran reported being a carpenter by trade and really wanting to work again, but he stated that he was too fatigued to work a full day. The Veteran underwent a VA examination in July 2016, during which he reported daily symptoms of fatigue, arthralgia, malaise, and weakness. The examiner indicated that the Veteran took Sulfamethoxazole and Tacrolimus for the prevention of transplant rejection, and he recently had a dermatophytic infection of the hands and face, which was likely associated with his immunosuppressive therapy. The examiner indicated that the Veteran’s liver conditions impacted his ability to work in that his fatigue and need for frequent rest severely limited any physically strenuous activities. Subsequent VA treatment records show that the Veteran stated that he started doing some handyman work here and there; however, he reported having to rest for a couple days after doing any type of work. During the August 2019 Board hearing, the Veteran testified that he was only able to work a few hours a week due to fatigue. In summary, the Veteran did not undergo an in-person VA examination after the assignment of the 100 percent rating for a liver transplant and prior to the reduction in rating. Although he did not have any major complications from his liver transplant after the episode of acute cellular rejection in February 2013, the Veteran continued to undergo treatment for hepatitis C. At the time of the rating reduction in June 2014, the Veteran had ongoing symptoms of daily fatigue, arthralgia, malaise, and weakness, and he was not able to work in any capacity for several years thereafter. Indeed, the January 2013 VA examiner who reviewed the medical evidence of record and the June 2016 VA examiner who evaluated the Veteran in person both indicated that the fatigue caused by the Veteran’s liver conditions severely limited any physically strenuous activity and required him to rest frequently. Based on the foregoing, the Board finds the record did not show an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work at the time of the reduction in rating. Therefore, the 100 percent rating is restored. See 38 C.F.R. §§ 3.105, 3.344(b). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.