Citation Nr: 21062348 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-57 303 DATE: October 7, 2021 THE ISSUES 1. Entitlement to an increased disability rating in excess of 30 percent for hepatitis C, status post liver transplant prior to August 9, 2019. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ORDER Entitlement to an increased disability rating in excess of 30 percent for hepatitis C, status post liver transplant prior to December 2, 2015 is denied. Entitlement to a 100 percent disability rating from December 2, 2015 to August 9, 2019 for hepatitis C, status post liver transplant is granted. Entitlement to a TDIU is denied. FINDINGS OF FACT 1. For the period prior to December 2, 2015, the evidence of record reflects that the Veteran's hepatitis C, status post liver transplant manifested by daily fatigue, but absent any evidence of weight loss or hepatomegaly requiring continuous medication and absent incapacitating episodes having a total duration of at least four weeks during the past 12-month period. 2. From December 2, 2015 to August 9, 2019 the Veteran's hepatitis C, status post liver transplant manifested by near-constant debilitating symptoms, including arthralgia. 3. The issue of entitlement to a TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for rating hepatitis C, status post liver transplant in excess of 30 percent prior to December 2, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DCs 7351, 7354. 2. The criteria for 100 percent disability rating for hepatitis C, status post liver transplant from December 2, 2015 to August 9, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DCs 7351, 7354. 3. . The issue of entitlement to a TDIU is moot. 38 U.S.C. §§ 1155, 5107 (2016); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran appeared before the undersigned Veterans Law Judge in a video-conference hearing in January 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. These matters were previously before the Board in December 2020 at which time they were remanded for further development. As will be discussed below, the Board finds that there has been substantial compliance with its remand directives and the matters are once again properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Lastly, during remand status, a May 2021 rating decision granted an increased disability rating of 100 percent for the Veteran's hepatitis C, status post liver transplant effective August 9, 2019. As the award does not represent a full grant of the benefit sought on appeal prior to August 9, 2019, the claim remains in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an increased disability rating in excess of 30 percent for hepatitis C, status post liver transplant prior to August 9, 2019. 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 (2012); 38 C.F.R. § 4. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b);38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the Court noted an important distinction between an appeal involving a Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). All liver diseases are evaluated under the schedule for rating disorders of digestive system. 38 C.F.R. § 4.114. Prior to August 9, 2019, the Veteran was is in receipt of a 30 percent rating under Diagnostic Code (DC) 7351, which applies to liver transplants, providing a 100 percent evaluation for an indefinite period from the date of hospital admission for transplant surgery. 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. The minimum evaluation is 30 percent. From August 9, 2019, the Veteran is in receipt of a total disability rating for his hepatitis C, status post liver transplant under DC 7354, which pertains to hepatitis C without cirrhosis. Additionally, as of that date, he is in receipt of separate disability ratings for his bilateral lower extremity neuropathy. See March 2021 Rating Decision. The Veteran has not expressed disagreement with those assigned disability ratings and therefore the Board will not address those rating. Any sequelae, such as cirrhosis, is evaluated separately under DC 7312. See 38 C.F.R. § 4.114, DC 7354, Note 1. Under DC 7354, an asymptomatic Hepatitis C is rated as noncompensable. A 10 percent is assigned for 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. Of note, for purposes of evaluating conditions under diagnostic code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require both bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7354, Note 2. A 20 percent is assigned for 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 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. Here, 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. See 38 C.F.R. § 4.112. "Baseline weight" is the average weight for the two-year period preceding onset of the disease. Id. A 60 percent is assigned for 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. 38 C.F.R. § 4.114, DC 7354. 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. See 38 C.F.R. § 4.112. A total rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). The Veteran contends that his hepatitis C, status post liver transplant is more serious than is currently contemplated by his 30 percent disability rating. In this case, the Veteran contends that a 30 percent rating under DC 7354 prior to August 9, 2019, the date at which he has been granted a 100 percent disability rating, does not adequately assess his status post liver transplant. He contends that his symptoms have rendered him unable to work. Specifically, the Veteran through his attorney has argued that the Veteran is entitled to a total disability rating from December 2, 2015 to August 9, 2019. Alternatively, the Veteran's attorney argues the Veteran is entitled to a TDIU as of that date. See Robinson v. Peake, 21 Vet. App. 545, 554 (2008) (presuming that "an experienced attorney in veteran's law[ ] says what he means and means what he says"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). A July 2013 VA examination merely indicates that the Veteran suffered from daily fatigue and noted no other symptoms. There were no incapacitating episodes. In a June 2015 rating decision, the RO assigned the Veteran an initial 30 percent disability rating of 30 percent. The Veteran filed a timely Notice of Disagreement in July 2017 in which he argued that he was entitled to an increased disability rating because "of the way it affect[ed his] activities of daily living and the impact on [his] life in general." The Veteran also contended that he would need to take medication for the rest of his life which suppresses his immune system, which limits his activities. The Veteran also complained of "severe fatigue." In support of his claim, the Veteran has submitted a private Disability Benefits Questionnaire (DBQ) dated August 2019. The examiner, Dr. D.A., identified himself as the Veteran's primary care provider. Dr. D.A. found that the Veteran displayed near constant and debilitating fatigue, malaise, and arthralgia, and daily anorexia, nausea, vomiting, and upper right quadrant pain. The Veteran also submitted supplemental letters from Dr. D.A. dated December 2015 and July 2019 which repeated the symptoms found in the August 2019 DBQ. At the February 2020 Board hearing, the Veteran testified that he suffered from fatigue and numbness in his extremities. The Veteran was afforded a new VA examination in May 2020. The VA examiner recorded daily fatigue and intermittent right upper quadrant pain. However, the examination was not conducted in person, and the Veteran was not contacted for an interview. Additionally, the examiner wrote that the most recent examination was in July 2013 and did not address the findings of the August 2019 private examination. In its December 2020 decision, the Board remanded the matter in order to afford the Veteran a new VA examination to determine the current severity of his residuals of a liver transplant. The Veteran was afforded such an in-person VA examination in February 2021. The VA examiner recorded daily fatigue, daily right upper quadrant pain, and near constant and debilitating arthralgia. The examiner found incapacitating episodes due to his liver condition for more than 6 weeks during the past 12 months. In April 2021 VA obtained an addendum opinion which asked an examiner to address the findings of Dr. D.A.'s December 2015, July 2019, and August 2019 letters and report, respectively. The VA examiner continued to attribute the Veteran's symptoms to other causes, to include non-service-connected obstructive sleep apnea and COPD. The examiner asserted that Dr. D.A.'s characterizations of the Veteran's disabilities were "largely not supported by treatment notes." Based on the August 2019 private examination and April 2021 VA examinations, a May 2021 rating decision granted an increased evaluation of hepatitis C, status post liver transplant and granted a 100 percent disability rating effective August 9, 2019. As this represents a full grant of disability benefits sought from that date, the Board will restrict its instant decision to entitlement to an increased disability rating prior to that date. Additionally, as noted above, the Veteran was granted separate disability ratings for lower bilateral neuropathy. In August 2021, Dr. D.A. submitted an additional letter explaining that he was the Veteran's treating physician and that the symptoms that he identified in the August 2019 private examination were first present as of December 2, 2015. Dr. D.A. explained that the Veteran had "suffered severe complications related to both the [liver] transplant and the immunosuppression." When it is not possible to separate the effects of a service-connected condition and a nonservice-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the Veteran's favor, and that all signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). As the evidence is in relative equipoise that the Veteran's symptoms are attributable to his service-connected disability, the Board resolves the reasonable doubt in the Veteran's favor and finds that the Veteran suffered from symptoms that more closely approximate a total disability rating from December 2, 2015 to August 9, 2019. However, for the period prior to December 2, 2015, the Board finds that the evidence does not establish that the Veteran's disability picture is more accurately described by a disability rating in excess of 30 percent. Indeed, the most probative evidence, the July 2013 VA examination, found daily fatigue and no other symptoms. The Board acknowledges the Veteran's contentions that he suffered from "severe fatigue," but notes that this symptom is contemplated by his 30 percent disability rating. Therefore, a disability rating in excess of 30 percent prior to December 2, 2015 is not warranted. 2. Entitlement to a TDIU is denied. The Veteran contends that he is unemployable due to his service-connected disabilities from December 5, 2015. See August 2021 Third Party Correspondence. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). "TDIU is to be awarded based on the 'judgment of the rating agency.'" Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). A total disability rating typically requires either a single disability rated at 60 percent or more, or multiple disabilities rated together at 70 percent or more with at least one of the disabilities rated at 40 percent or more. 38 C.F.R. § 4.16(a). The Board notes that the Veteran's attorney's argument has centered around the Veteran's hepatitis C, status post liver transplant as being the cause of his unemployability and seeks entitlement to a TDIU as an alternative to a 100 percent disability rating effective December 5, 2015. The Board has granted this 100 percent disability rating for hepatitis C, status post liver transplant effective December 2, 2015. Additionally, the Veteran's remaining service-connected disabilities do not meet the schedular requirement for a TDIU. As such, no further discussion is warranted. See Robinson, 21 Vet. App. 545, 554 (2008) (presuming that "an experienced attorney in veteran's law[ ] says what he means and means what he says"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Scott, 789 F.3d 1375 (Fed. Cir. 2015). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.