Citation Nr: 21028627 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-10 904 DATE: May 11, 2021 ORDER Entitlement to a rating in excess of 30 percent for primary sclerosing cholangitis, with cirrhosis status post liver transplant (status post liver transplant) prior to June 25, 2016, is denied. The reduction in the disability rating for status post liver transplant from 100 percent disabling to 30 percent, effective July 27, 2017, was improper and restoration of the 100 percent rating is restored, effective July 27, 2017, subject to the laws and regulations governing the payment of monetary benefit. Entitlement to service connection for osteoporosis secondary to status post liver transplant is granted. Entitlement to service connection for hypertension secondary to status post liver transplant is granted. Entitlement to service connection for steroid acne secondary to status post liver transplant is granted. Entitlement to service connection for periodontal disease secondary to status post liver transplant is granted. FINDINGS OF FACT 1. From December 9, 2008 to June 24, 2016, the Veteran did not have a liver transplant surgery. 2. In its April 2018 rating decision reducing the disability rating for status post liver transplant from 100 percent to 30 percent, effective July 27, 2017, the RO failed to comply with due process requirements by not issuing a rating action proposing a reduction in the Veteran's compensation and affording the Veteran an opportunity to submit additional evidence, for status post liver transplant. 3. The Veteran has osteoporosis secondary to medications required for service-connected status post liver transplant. 4. The Veteran has hypertension secondary to medications required for service-connected status post liver transplant. 5. The Veteran has steroid acne secondary to medications required for service-connected status post liver transplant. 6. The Veteran has periodontal disease secondary to medications required for service-connected status post liver transplant. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for service-connected post liver transplant, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7351. 2. The April 2018 rating decision reducing the Veteran's rating for service-connected status post liver transplant from 100 percent to 30 percent without compliance with applicable regulatory requirements renders the reduction void ab initio. 38 U.S.C. §§ 1155, 5112 (West 2012); 38 C.F.R. §§ 3.105(e). 3. The criteria for entitlement to service connection for osteoporosis secondary to medications required for service-connected post liver transplant have been met. 38 U.S.C. §§ 1155; §§ 3.303; 3.310. 4. The criteria for entitlement to service connection for hypertension secondary to medications required for service-connected status post liver transplant have been met. 38 U.S.C. §§ 1155; §§ 3.303; 3.310. 5. The criteria for entitlement to service connection for steroid acne secondary to medications required for service-connected status post liver transplant have been met. 38 U.S.C. §§ 1155; §§ 3.303; 3.310. 6. The criteria for entitlement to service connection for periodontal disease secondary to medications required for service-connected status post liver transplant have been met. 38 U.S.C. §§ 1155; §§ 3.303; 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1997 to December 1999. In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the June 2018 Board hearing, it was noted that the issue on appeal was entitlement to an increased rating for status post kidney transplant and status post liver transplant. The Veteran acknowledged that was the issue on appeal. However, a review of the record reflects that these are two separate issues. In other words, the Veteran is service connected for status post liver transplant and he is also separately service connected for status post kidney transplant. Based on the review of the procedural history contained in the record, the Board finds that the issue of an increased rating for a status post kidney transplant is not within the jurisdiction of the Board's review at this time. In an October 2017 rating decision, the Veteran was service connected for a kidney transplant with a 30 percent rating. The Veteran did not file a notice of disagreement with this rating decision. Subsequently, based on medical evidence that the Veteran had a kidney transplant in June 2016, in an April 2018 rating decision, the Veteran's rating for a kidney transplant was increased to 100 percent effective June 21, 2017, with a 60 percent rating assigned from October 16, 2017. The Veteran did not file a notice of disagreement with this decision. Given that the record does not reflect a notice of disagreement with respect to this issue, the Board does not have jurisdiction over this issue at this time. Therefore, the issue of increased rating with respect to the Veteran's service-connected status post kidney transplant which was raised during the June 2018 Board hearing is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. The issues of entitlement to service connection for osteoporosis, hypertension, steroid acne, and periodontal disease have been raised by the record and the Board will grant service connection for these disabilities in the first instance. VA has a duty to investigate whether a condition that is not directly related to service is secondarily related to service when information is obtained during the processing of the claim that reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service. See DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). While investigating the pending claims, VA received medical evidence indicating that the Veteran developed osteoporosis, hypertension, steroid acne, and periodontal disease secondary to the medications required for the Veteran's service-connected status post liver transplant. Accordingly, these issues are included in the present appeal. I. Increased Rating Applicable Rules and Regulations 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). Analysis Here, in a January 2001 rating decision, service connection for status post liver transplant was granted a 100 percent rating effective December 31, 1999. In a March 2006 rating decision, the Veteran's rating was proposed to be decreased to 30 percent. In an associated notification letter, the Veteran was notified that within 60 days, he had the right to submit evidence and/or request a personal hearing prior to the decrease of this rating. The Veteran did not file a notice of disagreement, request a hearing, nor did he submit any evidence. Subsequently, in a September 2006 rating decision, the Veteran's rating was decreased from 100 percent to 30 percent, effective December 1, 2006. The Veteran did not file a notice of disagreement with the 30 percent rating. However, on December 9, 2009, the Veteran filed a claim of increase with respect to his service-connected status post liver transplant. Given that 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. Therefore, the relevant temporal focus for this disability is one year prior to the date of receipt of the claim; thus, the appeal period begins on December 9, 2008. 38 C.F.R. § 3.400. The Board notes that effective June 25, 2016, the Veteran's rating was increased to 100 percent. Given that a 100 percent rating is the maximum rating, the period on appeal with respect to the Veteran's increased rating claim is from December 8, 2008 to June 24, 2016. 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, DC 7351. A Note to DC 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 DC 7351. Thus, in order to receive a higher rating of 100 percent, the evidence must reflect hospital admission for transplant surgery. In a January 2010 VA examination report, the Veteran's condition was evaluated. The VA examiner noted that the Veteran had two liver transplants in 2003 and was currently taking medication to prevent rejection. The examination report does not reflect any liver transplants since the 2003 transplants. In a February 2010 Statement in Support of the Claim, the Veteran contends that a higher rating is warranted. Specifically, the Veteran contends that he suffers from multiple problems with rejection since his transplant in 2003. In March 2011 VA follow-up note, the Veteran's liver was stable with no evidence of rejection. See West Haven VA medical center records. In an addendum note, the examiner noted that the Veteran's numbers are the best they've been in a while and he will continue on his present dose of medicine. In April 2011, the Veteran went to the emergency room because he had a fever and his throat was swollen. He was sent home with a diagnosis unrelated to his status post liver transplant (viral pharyngitis). See West Haven VA medical center records. The VA treatment records do not reflect hospital admission until June 25, 2016 for a liver transplant. Which, as the Board discussed above, is the date the Veteran is in receipt of a 100 percent rating for this service-connected condition. Given such, from December 8, 2008 to June 24, 2016, there is no evidence of a hospital admission for a transplant surgery; thus, there is no evidence to warrant an increase to a 100 percent rating under DC 7351. The Board acknowledges the Veteran's statements with respect to the complications and the side effects of the anti-rejection medications he took during the period on appeal. And the Board notes that the Veteran's 30 percent rating contemplates the residuals associated with status post liver transplant. However, a prerequisite for a 100 percent rating is a hospital admission for a transplant surgery. During the period on appeal, the evidence does not reflect, nor does the Veteran contend, that he underwent a liver transplant surgery. Accordingly, as the preponderance of the evidence is against finding that the Veteran is entitled to a higher rating for his service-connected status post liver transplant, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38U.S.C. §5107 (b); Gilbert v. Derwinski,1 Vet. App. 49, 55 (1990). II. Reduction Legal Principles and Regulations When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating 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 or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued 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. Id. In addition, the veteran will be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105 (h). These are such important safeguards that the U.S. Court of Appeals for Veterans Claims has held that where VA has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 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. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, such as manic depressive or other psychotic reaction, epilepsy, asthma, ulcers, and many skin diseases, 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. Moreover, where material improvement in the physical or mental 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. 38 C.F.R. § 3.344 (a). The above considerations are required for ratings which have continued for long periods at the same level, i.e. five years or more. 38 C.F.R. § 3.344 (c). Once the five-year requirement of 38 C.F.R. § 3.344 has been satisfied, a reduction of the pertinent rating percentages can only be effected if the reduction complies with the provisions of 38 C.F.R. § 3.344 (a). The reduction can be justified only if there is a showing by a preponderance of the evidence that the rating reduction is warranted. Brown, 5 Vet. App. at 419-20. Specifically, the U.S. Court of Appeals for Veterans Claims requires that adjudicators must: 1) review the entire record of examinations and medical and industrial history to ascertain whether the recent examination(s) on which the reduction was based were full and complete; 2) decline to use examinations which are less full and complete than those on which payments were authorized or continued; 3) not reduce an evaluation except in cases where all the evidence clearly warrants a finding of material improvement. Id. at 419-20. In addition, where material improvement in the physical condition is clearly shown, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. Prior to reducing a veteran's disability rating, however, VA is required to "comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect." Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. § 4.1, 4.2, 4.10. These general provisions "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In considering the propriety of a reduction, the Board must focus on the 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 conditions had demonstrated actual improvement. Dofflemyer, 2 Vet. App. 277. Propriety of Rating Reduction Here, the Board notes that in an April 2018 rating decision, the Veteran's 100 percent rating for status post liver transplant was reduced to 30 percent effective July 27, 2017, under DC 7531. At the onset, the Board notes that in cases where a veteran's disability rating is reduced, as is the issue in this case, the Board must determine whether the reduction of the veteran's rating was proper, to include whether the veteran is entitled to restoration of the previous rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Turning to DC 7351, the Board notes that the current language of the note, which is applicable to this case, requires that any change in evaluation based on examination be subject to the provisions of § 3.105(e). Regulatory § 3.105(e) sets forth the notice procedures that VA must follow before reducing rating. It provides: (e) Reduction in evaluation --compensation. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons, therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 C.F.R. § 3.105(e). Because § 3.105(e) specifically addresses rating reductions and because the requirements of § 3.105(e) must be followed in order for VA to assign a lower evaluation after assigning a 100 percent disability rating under DC 7351, the matter involved here is a rating reduction matter, and VA must comply with the protections afforded by regulation when reducing a rating. Notably, in contrast, when dealing with convalescent ratings, which are temporary ratings, the requirements of § 3.105(e) need not be followed. See 38 C.F.R. § 4.30 (providing that "[t]he termination of these total ratings will not be subject to § 3.105(e) of this chapter"). Here, the procedural requirements of 38 C.F.R. § 3.105(e) have not been satisfied. Specifically, the Veteran was not (1) given a rating proposing the reduction or discontinuance setting forth all material facts and reasons and (2) notified at his latest address of record of the contemplated action and furnished detailed reasons, therefor, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued a their present level. As stated previously, in an April 2018 rating decision, the Veteran was notified that his rating decreased to 30 percent without affording him of any of the procedural requirements enumerated under 38 C.F.R. § 3.105(e). When an RO reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). Further, while the law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Given such, the Board finds that the RO's April 2018 rating decision is void ab initio, and the Veteran's status post liver transplant rating must be restored to a 100 percent rating. III. Service Connection In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. Thus, if the Secretary determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition "reasonably encompasses" a claim for that causal disease or disability, such that no additional filing is necessary to initiate a claim for benefits for the causal disease or disability. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Osteoporosis, Hypertension, Steroid Acne, and Periodontal Disease As discussed above, the issue of entitlement to service connection for osteoporosis, hypertension, steroid acne, and periodontal disease have been raised by the record and the Board will grant service connection for these disabilities in the first instance. Here, the Board notes in the January 2010 VA examination report, the VA examiner noted that the Veteran's status post liver transplant (two times) with multiple episodes of rejection with acute exacerbations required a repeated course of steroid treatment and a clinical picture now consistent with progression to steroid dependency. The VA examiner opined that the Veteran has steroid acne, hypertension, periodontal disease, and osteoporosis as likely as not secondary to the medications required for his service-connected status post liver transplant. (Continued on the next page) Given such, service connection for these disabilities are warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.