Citation Nr: 21032870 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 20-27 896 DATE: May 28, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for liver cirrhosis is denied. Entitlement to an effective date for service connection for liver cirrhosis of May 10, 2012, but no earlier, is granted. New and material evidence having been submitted, the claim for service connection for a lung condition is reopened. Entitlement to compensation under 38 U.S.C. § 1151 for right eye blindness is denied. Entitlement to compensation under 38 U.S.C. § 1151 for left eye blindness is denied. REMANDED Entitlement to service connection for a lung condition is remanded. FINDINGS OF FACT 1. The Veteran's liver cirrhosis has not resulted in portal hypertension, splenomegaly, ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. 2. The earliest date on which the record supports that the Veteran had liver cirrhosis is May 10, 2012. 3. The claim for service connection for a lung condition was previously denied by a Department of Veterans Affairs (VA) Regional Office (RO) in a decision dated in April 2010 and denied reopening the claim in April 2014 and February 2015. The Veteran did not file a timely substantive appeal in response to either decision. 4. New evidence received since the time of the final February 2015 decision relates to an unestablished fact necessary to grant the Veteran's claim of entitlement to service connection for service connection for a lung condition. 5. The evidence does not support a worsening of the Veteran's right or left eye that was not reasonably foreseeable or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for liver cirrhosis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Code 7312. 2. The criteria for the assignment of an effective date of May 10, 2012, but no earlier, for service connection for liver cirrhosis are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155 (a), 3.400. 3. The April 2010 rating decision denying service connection for a lung condition and February 2015 denying reopening the claim are final. 38 U.S.C. § 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. Evidence submitted to reopen the claim of entitlement to service connection for a lung condition is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 5. The criteria for compensation under 38 U.S.C.A. § 1151 for right and left eye blindness have not been met. 38 U.S.C. §§ 1151, 5121A; 38 C.F.R. §§ 3.102, 3.159, 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an initial rating in excess of 10 percent for liver cirrhosis The Veteran contends he is entitled to a rating in excess of 10 percent for liver cirrhosis. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Cirrhosis of the liver is rated under Diagnostic Code 7312. Diagnostic Code 7312 provides for a 10 percent rating for symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating is warranted for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating is warranted with a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. A 70 percent rating is warranted with a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy, but with periods of remission between attacks. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.114. Thus, for the next higher, 30 percent, rating, the record must reflect that the Veteran has portal hypertension and splenomegaly in addition to weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. The Board finds that a preponderance of the evidence is against finding that the Veteran meets the criteria for a 30 percent rating. On VA examination in September 2016, September 2017, and February 2019, the Veteran's liver cirrhosis symptoms were listed as weakness, abdominal pain, malaise, and weight loss, with the September 2016 VA examiner also listing anorexia. No examiner has indicated that the Veteran has portal hypertension or splenomegaly, nor do any medical treatment records indicate such conditions. Records further do not support that the Veteran has had ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent for liver cirrhosis. 2. Entitlement to an effective date for service connection for liver cirrhosis prior to August 30, 2012 In his February 2018 notice of disagreement, the Veteran appealed both the initial rating assigned for liver cirrhosis and the effective date. The Board notes that although the RO did not separately list the issue of an earlier effective date in the April 2020 statement of the case, it was part of the discussion under the issue of entitlement to a higher rating. Therefore, the Board finds that the issue is properly before it and has listed it separately in this decision. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The RO granted service connection for liver cirrhosis effective August 30, 2012, finding that that was the date on which the condition was diagnosed, and the issue was part of the Veteran's pending claim for an increased rating for hepatitis C. The record reflects that the Veteran filed his claim for an increased rating for hepatitis C in 2009 and service connection for his liver cirrhosis was granted as secondary to his hepatitis C. The Board notes that in September 2016 a VA examiner identified the date of diagnosis of cirrhosis of the liver as August 30, 2012. However, the Board has carefully reviewed the Veteran's medical records and finds there is evidence that he had cirrhosis earlier. The impression of a February 2012 computerized tomography (CT) scan did not include a finding of cirrhosis. A May 2012 gastroenterology note indicates probable cirrhosis, which was confirmed by a September 2012 CT scan. Based on the forgoing, and giving the Veteran the benefit of the doubt, the Board finds that service connection is warranted effective May 10, 2012. An earlier date is not proper as a preponderance of the evidence is against finding that the Veteran had cirrhosis of the liver prior to May 10, 2012. Thus, entitlement to an effective date of May 10, 2012 for service connection for liver cirrhosis is granted. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for a lung condition The RO denied service connection for a lung condition in April 2010. The Veteran filed a timely notice of disagreement but did not file a substantive appeal with respect to his service connection claim. Further, no new evidence pertinent to the claim was received by VA prior to the expiration of the appeal period. The decision thus became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The Veteran filed to reopen his claim. In an April 2014 decision and again in a February 2015 decision, the RO denied reopening the Veteran's claim for service connection for a lung condition. The Veteran filed a notice of disagreement with the February 2015 rating decision in April 2016, but as it was received more than a year after he was notified of the rating decision, it is not timely. The Board notes that the Veteran filed a VA Form 9, substantive appeal to the Board, in October 2016; however, the February 2015 decision had become final and the issue of entitlement to service connection for a lung condition was not on appeal. No new evidence pertinent to the claim was received by VA prior to the expiration of the February 2015 appeal period, nor had had any relevant service department records been added to the file since the April 2010 denial. Therefore, the February 2015 decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. The Veteran again filed to reopen his claim for service connection for a lung condition in June 2017 by filing a VA Form 21-526EZ. The RO again denied reopening the claim in an October 2017 rating decision. That is the decision currently on appeal. The Board notes that VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the prior final decision. The Board is neither required nor permitted to analyze the merits of a previously denied claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The basis of the prior final denial was the RO's finding that the evidence showed that the Veteran had lung nodules but not that they onset in service, were due to asbestos exposure in service, or manifested to a compensable degree within one year of discharge from service. Evidence added to the file includes a letter from the Veteran's private treating doctor stating that the Veteran has been diagnosed with asbestosis that is causing him multiple pulmonary nodules. The Veteran also submitted information printed from the Internet about the USS Boxer indicating that the ship utilized asbestos in many pieces of equipment on board. The Veteran also submitted a statement contending that he was exposed to asbestos aboard the USS Boxer in the ship's paint locker as well as by performing other duties. Presumed credible, the evidence relates to an unestablished fact necessary to necessary to grant the Veteran's claim of entitlement to service connection for a lung condition. The Board thus finds that the Veteran's claim for entitlement to service connection for a lung condition should be reopened. 1151 Eligibility 4. Entitlement to compensation under 38 U.S.C. § 1151 for right eye blindness 5. Entitlement to compensation under 38 U.S.C. § 1151 for left eye blindness In his June 2017 claim, the Veteran claimed VA treatment caused his right and left eye blindness. Section 1151 compensation is awarded for qualifying additional disability in the same manner as if such additional disability were service connected. The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). For purposes of establishing entitlement to section 1151 benefits, a disability or death is a qualifying additional disability or qualifying death if the disability or death: (1) was not the result of the Veteran's willful misconduct; and (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.361 (a)-(d). Here, the Veteran has not specified what VA treatment caused additional eye disability. A brief from his representative alleges that the cataract surgery caused his bilateral eye condition and specifically asserts that the wrong lenses were implanted. The Board has reviewed the record and notes that the Veteran underwent a right eye cataract extraction surgery at the VA in July 2014 and a left eye cataract extraction surgery at the VA in September 2014. He had additional cataract surgery in February 2015. The Veteran submitted a June 2017 letter from his private optometrist stating that the Veteran was referred to him by the VA in an attempt to improve vision with the left eye being reduced somewhat since previous cataract surgery. The optometrist noted he had been able to obtain best visual acuity of 20/20- bilaterally with contact lenses. A June 2017 letter from his primary care provider reported she had treated him for many years and summarized his vision and eye health over the prior three years. This practitioner states that most of the Veteran's issues have come from severe dry eyes and possible underlying corneal disease. The Board is unable to find any medical opinion or evidence supporting a worsening of the Veteran's right or left eye that was not reasonably foreseeable or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. While the letters from the Veteran's optometrist and primary care provider suggest decreased vision and other symptoms after surgery, neither directly indicates the cause of the conditions was the surgery nor does either doctor suggest any such additional disability was not reasonably foreseeable or caused by some fault on the part of VA treatment. The Board acknowledges the Veteran's own generalized lay statement, but notes it lacks any specificity on the VA treatment alleged to have caused the disability or the exact disability itself. Furthermore, the Veteran does not have the requisite knowledge, training or expertise to render an etiological opinion about a medical issue as complicated as the etiological cause of his eye conditions from surgery or the question as to whether the treatment involved an event not reasonably foreseeable or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA . See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) Based on the forgoing, the Board finds that a preponderance of the evidence is against entitlement to compensation under 38 U.S.C. § 1151 for a right or left eye disability. REASONS FOR REMAND 1. Entitlement to service connection for a lung condition is remanded. As discussed above, the Board has found that the Veteran's claim for entitlement to a lung condition should be reopened. As the RO did not reopen the claim and consider it on a direct basis, the Board finds that the claim should be returned to the RO for initial adjudication. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). (Continued on the next page) The matters are REMANDED for the following action: After performing any necessary development, adjudicate the Veteran's claim for service connection for a lung condition. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.