Citation Nr: 21026158 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-11 954 DATE: April 30, 2021 ORDER Entitlement to an earlier effective date of May 17, 2001 for the award of a total disability rating based upon individual unemployability (TDIU) is granted. Entitlement to an earlier effective date of April 2, 2016 for the award of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s)(1) is granted. Prior to September 6, 2017, entitlement to an initial rating in excess of 50 percent for hepatic cirrhosis of the liver with grade 1 esophageal varices, erosive gastritis, portal hypertension, and hepatic encephalopathy (hereinafter “hepatic cirrhosis”) is denied. From September 6, 2017 to September 11, 2020 (at which time a 100 percent schedular rating is in effect), entitlement to a rating in excess of 70 percent for hepatic cirrhosis is denied. Entitlement to a separate compensable rating for hepatic encephalopathy (previously rated as 10 percent disabling) is dismissed. Entitlement to a rating in excess of 60 percent for diabetes mellitus type II with mild cataracts in both eyes is denied. FINDINGS OF FACT 1. From May 17, 2001, the Veteran’s hepatitis C has rendered him unable to secure or follow a substantially gainful occupation. 2. From April 2, 2016, the Veteran has a single disability rated as 100 percent disabling (to include hepatitis C as the basis of an award of TDIU) with additional service-connected disabilities (diabetes mellitus type II with associated nephropathy) independently ratable at 60 percent or higher. 3. Prior to September 6, 2017, the Veteran’s hepatic cirrhosis was manifested by, in pertinent part, a history of one episode of hepatic encephalopathy. 4. From September 6, 2017 to September 11, 2020, the Veteran’s hepatic cirrhosis was manifested by, in pertinent part, a history of two or more episodes of hepatic encephalopathy but with periods of remission between attacks. 5. The Veteran’s recurrent hepatic encephalopathy has been incorporated into his evaluation for hepatic cirrhosis and is contemplated by his schedular rating for that disability under Diagnostic Code (DC) 7312. 6. The Veteran’s diabetes mellitus type II with mild cataracts has not been manifested by episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated. CONCLUSIONS OF LAW 1. From May 17, 2001, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(b) (2020). 2. From April 2, 2016, the criteria for SMC under 38 U.S.C. § 1114(s)(1) have been met. 38 U.S.C. §§ 1114(s)(1), 5107 (2012); 38 C.F.R. § 3.350(i) (2020). 3. Prior to September 6, 2017, the criteria for an initial rating in excess of 50 percent for hepatic cirrhosis were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.116, DC 7312 (2020). 4. From September 6, 2017 to September 11, 2020, the criteria for a rating in excess of 70 percent for hepatic cirrhosis were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.116, DC 7312 (2020). 5. As hepatic encephalopathy has been incorporated into the evaluation for service-connected hepatic cirrhosis, there is no further error of fact or law at issue. 38 U.S.C. § 7105(d)(5) (2012). 6. The criteria for a rating in excess of 60 percent for diabetes mellitus type II with mild cataracts have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.119, DC 7913 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from June 1966 to March 1968. These matters were previously remanded by the Board of Veterans’ Appeals (Board) in November 2016 and June 2020. In March 2020, the Veteran testified before the undersigned at a videoconference hearing. A transcript of the hearing is of record. In a November 2020 rating decision, the Regional Office (RO) granted additional compensation in the form of increased ratings and earlier effective dates for the Veteran’s hepatic cirrhosis, diabetes mellitus type II, diabetic nephropathy, and residuals of hepatitis C. The RO also granted entitlement to a TDIU, effective from January 11, 2016 to April 2, 2016, and SMC at the housebound rate, effective September 11, 2020. To the extent these actions did not constitute full grants of the benefits sought on appeal, the claims for increased disability compensation remain before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Claims 1. Entitlement to a TDIU prior to January 11, 2016 and subsequent to April 2, 2016 The Veteran has long argued that he has been unable to work due to his service-connected hepatitis C residuals. On review, for the reasons discussed below, the Board agrees that a TDIU is warranted for the entire period under review. This case presents an unusually complex procedural history, particularly regarding the TDIU issue. The Board notes that in a July 2020 rating decision, the RO granted entitlement to a TDIU, effective April 13, 2016. Thereafter, in a November 2020 rating decision, an earlier effective date of January 11, 2016 was awarded. At present, the Veteran’s award of TDIU is effective from January 11, 2016 to April 2, 2016; the Veteran is in receipt of a total combined rating as of April 2, 2016, and the RO apparently determined the TDIU issue was rendered moot by that award. However, for reasons that will become clear in the following section (which addresses entitlement to SMC), the Board herein is awarding a TDIU based on the Veteran’s impairment due to hepatitis C from May 17, 2001 to September 11, 2020 (this award is in addition to the four-month period in 2016 during which TDIU is already in effect). From September 11, 2020, the Veteran is in receipt of a total schedular rating for his hepatic cirrhosis plus SMC at the (s)(1) level. As this is the maximum available amount of disability compensation to which the Veteran is entitled, the Board need not consider entitlement to a TDIU from that date forward. In June 2020, the Board determined that the appeal period with respect to the issue of entitlement to a TDIU dates from the Veteran’s May 2001 claim for service connection for hepatitis C. Beginning on May 17, 2001, the Veteran is in receipt of an initial 20 percent rating for residuals of hepatitis C. Effective on May 10, 2012, his award was increased to 40 percent. He did not meet the schedular criteria for a TDIU until January 11, 2016. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent). Notwithstanding, it is VA policy that a TDIU will be awarded whenever a claimant is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). When, as here, the Veteran does not meet the requirements of 4.16(a), the Board may not award a TDIU in the first instance, but rather may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). In this case, the Board referred the matter of entitlement to a TDIU on an extraschedular basis to the Director for consideration as part of its June 2020 remand. In November 2020, the Director issued a memorandum declining to recommend an award of TDIU. This finding is not binding on the Board. See Anderson v. Shinseki, 22 Vet. App. 423, 427-29 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board). The relevant question now is whether the Veteran’s service-connected hepatitis C residuals rendered him unable to secure and follow a substantially gainful occupation prior to January 11, 2016. Having carefully reviewed the record, the Board finds that the evidence establishes entitlement to a TDIU solely on the basis of the Veteran’s hepatitis C residuals, effective May 17, 2001. In June 2001, less than a month after filing his claim, the Veteran submitted a clinical note from his VA physician which identified symptoms of diffuse myalgias, arthralgias, persistent nausea, and “overwhelming fatigue” associated with the Veteran’s hepatitis C and cirrhosis. The physician stated that the Veteran was “unable to work” due to his symptoms and due to side effects from his hepatitis medications. Nonetheless, for unknown reasons, the RO refused to even afford the Veteran a VA examination, perfunctorily denying his claim for service connection in an August 2002 rating decision. The Veteran filed a notice of disagreement in October 2002, arguing that he was exposed to several known hepatitis C risk factors while serving in Vietnam, including sexually transmitted diseases (for which he was treated twice in service), shared tooth brushes, and the blood of fellow servicemembers. Yet VA continued to ignore his contentions until the Board issued a remand, in April 2007, directing the RO to afford the Veteran an examination. The resulting examination report, dated in April 2008, includes a positive nexus opinion linking the Veteran’s hepatitis C to in-service risk factors. The report further noted that the Veteran was unemployed; that he had been forced to retire because of his hepatitis C symptoms; and that the disease significantly impacted his usual daily activities. Specific symptoms included monthly exacerbations (a total of more than six over the past 12-month period) lasting more than one week and characterized by fever, headache, fatigue, malaise, exhaustion, myalgia, arthralgia, pain behind the eyes, itchy skin, and pain in the right upper quadrant area. In a July 2009 decision, the Board finally granted service connection for hepatitis C. The RO implemented the grant of service connection in a January 2010 rating decision. Inexplicably, however, the decision assigned an initial rating of only 10 percent under DC 7354, despite the April 2008 VA examination providing support for, at minimum, a 60 percent evaluation under the criteria of DC 7354. The Veteran understandably appealed the initial 10 percent rating, and regretfully waited several years before his claim was adjudicated by VA. Meanwhile, the Veteran filed a formal TDIU application in April 2011 on which he indicated that he last worked full time in March 2001 and that he had been forced to retire due to his hepatitis C symptoms. In June 2012, he was afforded another VA examination, during which he reported symptoms of fatigue 70 percent of the time and decreased appetite. The examiner noted that the Veteran was “best suited for sedentary job tasks,” with no further rationale provided. The Veteran contested this finding in an April 2013 VA Form 9, claiming that his job history precluded him from finding work which required only sedentary tasks. Based on the above evidence, the Board finds that the Veteran’s hepatitis C was severely debilitating, and can reasonably be said to have prevented him from sustaining gainful employment, from the date he filed his claim for service connection, in May 2001. As noted above, less than a month after filing his claim, the Veteran’s VA physician opined that the Veteran’s hepatitis C residuals prevented him from working. There is no evidence indicating that his symptoms improved thereafter; on the contrary, the evidence of record demonstrates that the Veteran’s symptoms worsened. Most notably, the April 2008 VA examination report (the first examination the Veteran was afforded in this matter) confirms that the Veteran suffered week-long exacerbations of debilitating symptoms roughly once per month. It is difficult to imagine the circumstances under which one could be employed full-time under the weight of such disability, and indeed the Veteran has repeatedly asserted that he was unable to hold down full-time employment in light of his medical difficulties. The Board finds this assertion to be entirely reasonable and consistent with the evidence of record. Entitlement to a TDIU is warranted, pursuant to 38 C.F.R. § 4.16(b), as of May 17, 2001, the date VA received the Veteran’s claim for service connection. The Board wishes to apologize to the Veteran for the extraordinary delay in granting this claim. 2. Entitlement to SMC prior to September 11, 2020 VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). SMC is payable if a claimant has a single permanent disability rated 100 percent disabling and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). The Veteran is currently in receipt of SMC at the (s)(1) rate, effective September 11, 2020. However, as a result of the Board’s award of a total schedular rating for hepatitis C residuals (in the form of a TDIU), the criteria for SMC at the (s)(1) level has been met as of April 2, 2016, the date on which the Veteran has separate and distinct service-connected disabilities ratable at 60 percent or more. From that date forward, in addition to his service-connected hepatitis C residuals, rated as 100 percent disabling, the Veteran is in receipt of service connection for diabetes mellitus type II and associated nephropathy, each of which are rated as 60 percent disabling. Neither of these disabilities are associated with the Veteran’s hepatitis C. Thus, the Board finds that the Veteran has met the basic criteria of having a single disability rated at 100 percent with additional service-connected disabilities independently rated at 60 percent or higher, effective April 2, 2016. SMC pursuant to 38 U.S.C. § 1114(s)(1) is warranted. 3. Entitlement to an increased initial rating for hepatic cirrhosis and associated complications The Veteran is currently in receipt of a staged rating for hepatic cirrhosis with associated complications, to include hepatic encephalopathy. This complex disability is rated as 50 percent disabling prior to September 6, 2017; 70 percent disabling from September 6, 2017 to September 10, 2020; and 100 percent rating thereafter. For the following reasons, the Board finds that the Veteran’s current, staged rating is most appropriate, and increased ratings must be denied. The Veteran’s symptoms are rated under DC 7312. Under DC 7312, cirrhosis with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis) is rated 50 percent disabling. Cirrhosis with 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, is rated 70 percent disabling. Cirrhosis with 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), is rated 100 percent disabling. Note 1 to DC 7312 provides that, for rating under DC 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114. The Veteran filed the instant claim for service connection in January 2016. In April 2016, he was afforded VA examinations for cirrhosis and associated complications. The examiner noted that the Veteran had a longstanding history of cirrhosis which required continuous medication. Symptoms included fatigue, malaise, and nausea; there was no indication of generalized weakness, weight loss, or jaundice. In addition, the examiner noted that the Veteran had suffered an episode of hepatic encephalopathy in late 2015; this was the first such episode noted to have occurred. The examiner noted that this disorder was accompanied by cognitive decline and memory loss. In a July 2016 statement, the Veteran reported that he had experienced weight loss due to his cirrhosis, and stated that his liver was so damaged it could not remove toxins from his blood. In September 2017, the Veteran was hospitalized with another episode of hepatic encephalopathy. He was hospitalized again with the same condition in October 2019, January 2020, September 2020, and multiple times thereafter. In October 2020, the Veteran was afforded a VA examination for his liver condition. It was reported that he suffered from weakness, malaise, hepatic encephalopathy with periods of remission between attacks, and portal hypertension; the examiner noted that fatigue, malaise, and arthralgias would limit his ability to perform manual labor while his episodes of hepatic encephalopathy caused confusion and hampered concentration and memory. The Veteran’s VA treatment records reflect that in late 2020 he was placed in Hospice care, in part due to end-stage liver disease. In a November 2020 rating decision, the RO awarded the Veteran a 70 percent rating for hepatic cirrhosis and associated complications, effective September 6, 2017, and a 100 percent schedular rating, effective September 11, 2020. The RO reasoned that the Veteran’s hospitalization on September 6, 2017 for hepatic encephalopathy satisfied the criteria for a 70 percent rating, as it was the second such episode, and that September 11, 2020 marked the date the Veteran’s “condition of hepatic encephalopathy progressed to be deemed refractive to treatment,” thus warranting a 100 percent rating under DC 7312. See id. On review, the Board finds that the Veteran’s currently assigned staged ratings are appropriate given the course of his liver disease as discussed above. (As was discussed in detail above, the Board has maximized the Veteran’s award of disability compensation by granting an earlier effective date for his award of TDIU and by awarding additional SMC. As such, the denial of the claim for increased ratings for hepatic cirrhosis will not materially impact his compensation award.) Prior to September 6, 2017, there is no probative evidence of two more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). The RO correctly identified September 6, 2017 as the date of the Veteran’s second known episode of hepatic encephalopathy; as such, that is the appropriate effective date for his increased 70 percent rating, under the criteria of DC 7312. From September 6, 2017 to September 11, 2020, the Board finds that the most probative evidence does not establish that the Veteran experienced substantial weight loss or persistent jaundice, nor is there evidence of ascites, hemorrhage from varices, or erosive gastritis that was refractory to treatment. The Board admits that there is a question of fact regarding precisely when the Veteran’s recurrent episodes of hepatic encephalopathy can be said to have been considered “refractory to treatment.” The RO’s finding on this question—that the Veteran’s September 11, 2020 hospitalization marked the date on which these criteria were met—does not appear to be based on a specific medical determination. The Board has considered remanding the claim in order to obtain an opinion as to whether the Veteran’s long history of hospitalizations for recurrent hepatic encephalopathy, beginning in late 2015, can be deemed “refractory to treatment,” as the medical evidence of record does not appear to be adequate to resolve this question. However, because as noted above the Board is granting the maximum allowable compensation in other matters, and in light of the Veteran’s placement in Hospice care at the end of last year, the Board finds that a remand in this case is unnecessary. In sum, the Board finds that the currently assigned staged ratings are appropriate for the Veteran’s hepatic cirrhosis with associated complications. To this extent, his claim for increased ratings must be denied. 4. Entitlement to a separate compensable rating for hepatic encephalopathy The Veteran was originally assigned a separate, 10 percent rating for hepatic encephalopathy. He perfected an appeal seeking an increased rating for this disorder, which the Board remanded in its June 2020 remand. However, the Veteran’s hepatic encephalopathy was subsequently incorporated into the rating for his hepatic cirrhosis with associated complications, under DC 7312; in a November 2020 rating decision, the RO granted increased ratings for this condition largely on the basis of episodes of hepatic encephalopathy. Accordingly, assigning a separate compensable rating for hepatic encephalopathy would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. The claim must be dismissed. See 38 U.S.C. § 7105(d)(5) (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). 5. Entitlement to a rating in excess of 60 percent for diabetes mellitus type II The Veteran’s diabetes mellitus type II with mild cataracts are current rated as 60 percent disabling under DC 7913. Under DC 7913, a 60 percent rating is warranted for diabetes mellitus that requires one or more daily injections of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately warranted. A 100 percent rating is applicable for diabetes mellitus that requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated. 38 C.F.R. § 4.119, DC 7913. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent disability rating. Noncompensable complications are considered part of the diabetic process under DC 7913. Id. at Note (1). In this case, the Veteran received a separate 60 percent rating for diabetic nephropathy under DC 7541. See 38 C.F.R. §§ 4.115A, 4.115B. As discussed in greater detail below, the evidence does not reflect that a higher rating is warranted for renal dysfunction. The Veteran filed the instant claim for increased disability compensation in April 2016. He was afforded a VA diabetes mellitus examination in May 2016. The report reflects that the Veteran’s diabetes mellitus type II required more than one injection of insulin per day and regulation of activities (i.e., routine exercise). The examiner indicated that the Veteran had had one episode of ketoacidosis requiring hospitalization over the past 12 months and no such episodes of hypoglycemia. There was no evidence of progressive unintentional weight loss or loss of strength due to diabetes mellitus. The examiner stated that the complications of diabetes mellitus were limited to diabetic nephropathy. In addition, an eye examination report noted the presence of cataracts secondary to diabetes mellitus type II, which the examiner determined did not result in any functional impact. In August 2017, the Veteran was hospitalized with an admission diagnosis of uncontrolled type II diabetes mellitus. At his March 2020 Board hearing, the Veteran testified that he had experienced hypoglycemic reactions of increasing frequency, stating that he had been hospitalized three or four times in the previous year due to diabetic complications. In October 2020, the Veteran was afforded another VA examination for his diabetes mellitus type II. The report reflects that he required more than one injection of insulin per day and a restricted diet, but did not require the regulation of activities. The examiner noted that the Veteran visited his diabetic care provider for episodes of ketoacidosis and/or hypoglycemia less than two times per month, and that he had not been hospitalized due to such episodes over the past 12 months. The examiner indicated that there was no evidence of progressive unintentional weight loss or loss of strength. Complications included diabetic nephropathy and mild cataracts. No functional impact was noted. An eye examination indicated that there was no decrease in visual acuity or other visual impairment due to the Veteran’s cataracts, and the examiner indicated that the Veteran’s cataracts did not result in functional impairment. In this case, the Board finds that the weight of the evidence does not establish that the criteria for a rating in excess of 60 percent have been met. None of the VA examination reports reflect that the Veteran has had episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, or progressive loss of weight and strength or complications. In addition, because the evidence does not establish any visual impairment caused by the Veteran’s cataracts, a separate compensable rating for that disorder is not warranted. With respect to diabetic nephropathy, a March 2018 VA examination report does not present an evidentiary basis for an increased rating; the record does not include laboratory or other findings required for a rating in excess of 60 percent, that is, persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8 mg%; or generalized poor health due to renal dysfunction, characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. As such, an initial rating in excess of 60 percent for diabetic nephropathy is not warranted. See 38 C.F.R. §§ 4.115A, 4.1115B, DC 7541. In making the above determinations, the Board has considered the Veteran’s lay contentions regarding the nature of his diabetes, including his testimony as to the frequency of hospitalizations for diabetic care. The Board notes, however, that although he testified that he had been hospitalized multiple times at a private hospital for complications related to diabetes, a review of records from this hospital shows that many of these hospitalizations were precipitated primarily by episodes of hepatic encephalopathy. (The Veteran’s VA outpatient records do not reflect recent hospitalizations for episodes of ketoacidosis or hypoglycemia). None of the Veteran’s VA diabetes mellitus examination reports indicate that the Veteran has been hospitalized specifically for his diabetes frequently enough to warrant a 100 percent rating. In light of the above, the Board finds the VA and private medical records and the conclusions of VA medical professionals are more probative than the Veteran’s lay contentions regarding the nature of his diabetic care. In sum, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 60 percent for diabetes mellitus II with mild cataracts. The Veteran’s claim must be denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.