Citation Nr: 22018763 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-05 534A DATE: March 30, 2022 ORDER Entitlement to an evaluation greater than 40 percent for hepatitis C for accrued benefits purposes, from August 08, 2001, to July 15, 2006, is denied. FINDING OF FACT From August 08, 2001, to July 15, 2006, the Veteran's hepatitis C was not manifested by 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. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for hepatitis C have not been met for accrued benefits purposes from August 08, 2001, to July 15, 2006. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.1000, 4.114, Diagnostic Code (DC) 7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1971 to December 1973, from April 1974 to May 1976, and from July 1977 to January 1984. The Veteran died in July 2006; the Appellant is his surviving spouse. This matter comes before the Board on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in November 2021. A transcript of that proceeding has been associated with the claims file. 1. Entitlement to an evaluation greater than 40 percent for Hepatitis C for accrued benefits from August 8, 2001, to July 15, 2006, is denied. An accrued benefits claim arises after a Veteran has died. Although a claim does not survive death, see Landicho v. Brown, 7 Vet. App. 42, 47 (1994), certain individuals may be entitled to accrued benefits under certain conditions. Among requirements for accrued benefits are that a claim must be filed within the year after the Veteran's death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. An individual entitled to accrued benefits may be paid periodic monetary benefits to which a Veteran was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. In order to support a claim for accrued benefits, a Veteran must have had a claim pending at the time of death for such benefits or else be entitled to them under an existing rating or decision. 38 U.S.C. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. Feb. 11, 1998). An accrued benefits claim is, under the law, derivative of, and separate from, the Veteran's claims. See Zevalkink v. Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Thus, in the adjudication of a claim for accrued benefits, the claimant is bound by the same legal requirements to which the Veteran would have been bound had he or she survived to have the claim finally decided. As a threshold matter, there is no dispute that the procedural requirements for the appellant's claims for accrued benefits are met. Effective October 6, 2014, VA promulgated new regulations governing the rules and procedures for substitution upon death. See 38 C.F.R. § 3.1010. These new regulations provided that, "[i]n lieu of a specific request to substitute, a claim for accrued benefits, survivors pension, or dependency and indemnity compensation [DIC]. . . is deemed to include a request to substitute if a claim . . . or an appeal of a decision with respect to such a claim, was pending before the [AOJ] or the [Board] when the claimant died." Here, the appellant's DIC claim was received prior to October 6, 2014 (when 38 C.F.R. § 3.1010 became effective and DIC claims were deemed to include a request to substitute). The Board emphasizes that, by statute, entitlement to accrued benefits must be based on evidence in the file at the time of death, or evidence, such as VA records, deemed to be of record at that time. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). "Evidence in the file at date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims file on or before the date of death. 38 C.F.R. § 3.1000(d)(4). The Veteran's hepatitis C is rated under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354. The regulations have not been amended since the period on appeal. Under these criteria, a 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). A 60 percent rating is warranted where hepatitis C manifests with 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. A 40 percent rating is warranted 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. Note (1) indicates that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under DC 7354. Note (2) indicates that, for purposes of evaluating conditions under DC 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 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. 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. In addition, the term "inability to gain weight" means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and "baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. The schedular rating for hepatitis C under DC 7354 involves successive rating criteria; i.e., the criteria for a higher rating include those of a lesser rating, such that the higher rating is not warranted if the criteria for the lower rating are not met. See Camacho v. Nicholson, 21 Vet. App. 360, 366-67 (2007) (explaining that where a DC establishes a successive rating criteria, a claimant must meet all of the requirements of a lower rating criteria before she can be eligible for a higher rating criteria); see also Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (distinguishing between rating schedules that establish successive rating criteria from those where the criteria necessary for a higher rating are not dependent upon meeting the criteria of a lower rating and noting that it was not error by stating that § 4.7 does not apply). Alternatively, a Veteran may be rated based on cirrhosis, which is rated under DC 7312. See 38 C.F.R. § 4.114, DC 7312. Prior to July 2002, the regulations noted that a 30 percent rating is assigned for moderate liver cirrhosis with dilation of superficial abdominal veins, chronic dyspepsia, slight loss of weight or impairment of health. A 50 percent rating is assigned for moderately severe liver cirrhosis with liver definitely enlarged with abdominal distention due to early ascites and with muscle wasting and loss of strength. A 70 percent evaluation is assigned for severe liver cirrhosis with ascites requiring infrequent tapping, or recurrent hemorrhage from esophageal varices, aggravated symptoms, and impaired health. A 100 percent rating is assigned for pronounced liver cirrhosis with aggravation of the symptoms for moderate and severe, necessitating frequent tapping. The regulations as of July 2002 noted that a 10 percent rating is assigned for symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating is assigned for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating is assigned for history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating is assigned for 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. A total rating is assigned 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 (erosive gastritis). Of note, in no case may a separate rating be assigned for the same signs and symptoms used as basis for rating liver diseases under DC 7312. See 38 C.F.R. § 4.14. The Veteran provided a letter from a private physician Dr. W.K.S. in May 2002. The Veteran reported problems with recurring epistaxis for the past two to three weeks. He also had pruritis which was reoccurring for the past couple of months. He complained of increased fatigue and decreased libido. On examination he was alert and in no acute distress. His abdomen was soft, the liver edge was palpable, and there was mild upper right quadrant tenderness. No edema was apparent. Another letter was submitted by Dr. W.K.S. in June 2002. The Veteran stated that his itching had improved but he noted some mild headaches. The Veteran's CT scan showed some mild hepatomegaly but was otherwise negative for masses. It was noted that the Veteran's bilirubin was increasing which indicated worsening liver disease. The Veteran's pruritis had improved. The Veteran submitted a July 2002 letter from the same physician. It was noted that the Veteran was feeling better and that his pruritis had improved. It was also noted that his epistaxis had resolved. The physician stated that the Veteran's hepatic function remained stable. The Veteran submitted a letter from a certified registered nurse practitioner (CRNP) in June 2004 and August 2004. It was noted that the Veteran started Rebetron therapy to treat his hepatitis C in 2001 but he did not sustain a viral response. Liver function tests revealed the beginning of a decline in liver synthetic functioning. September 2003 VA treatment records indicated that the Veteran went to the emergency room with complaints of right upper quadrant and chest pain. After being seen, the Veteran stated that he was feeling better. In July 2004 VA records, the Veteran reported some fever, chills, and headaches during treatment. He reported no other major problems. September 2004 VA medical records noted that the Veteran was eating and having bowel movements following every meal. He denied any looseness, diarrhea, or constipation. He denied having blood in his stool, dysuria, or shortness of breath. He reported some lower abdominal discomfort based on the type of food he consumed. The Veteran stated that his appetite was good, but he did report some nausea that waxed and waned throughout the day depending on the food consumed. He denied reflux, regurgitation, or vomiting and stated that he was sleeping well. Additional September 2004 records noted a history of hepatitis C with cirrhosis of the liver with esophageal varices, ascites with lower extremity edema, and a gastric ulcer. The ascites was controlled, and no encephalopathy was noted. In October 2004 VA records the Veteran complained of bloating in the abdomen. He reported a weight loss of six pounds, but his spouse stated that she had to purchase him a bigger pants size. He reported an increased frequency of stools and stated that he was urinating without issue. The Veteran stated that he was a little bit fatigued but able to get through the workday. In subsequent October 2004 VA records, the Veteran stated that he was doing fairly well with no neuropathy symptoms or any pain. There was no abdominal pain or distention reported. The Veteran also denied problems with stools or urinating, nausea or vomiting, or significant weight loss. He denied chest pain but reported some shortness of breath. In May 2006, Dr. M.C. provided a letter regarding the Veteran's maintenance therapy for his recurrent hepatitis C with liver cirrhosis. The Veteran was admitted in hospital three times for complaints of scant hemoptysis, ascites, and encephalopathy. Medication relieved the Veteran's confusion and controlled his ascites. The Veteran had an upper endoscopy on his initial admission in late-June, which indicated moderate portal hypertensive gastropathy but no evidence of varices and no evidence of bleeding. The Veteran had proximal muscle wasting as well as bilateral temporal muscle wasting. His abdomen was soft, nontender, and nondistended without ascites. He had no peripheral edema and was alert and oriented. The persuasive evidence is against finding that hepatitis C was manifested by 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. Although the record notes symptoms of fatigue, enlarged liver, and weight loss during this period, the persuasive evidence against finding daily fatigue, malaise, and anorexia with a loss of greater than 20 percent of baseline weight. The Veteran reported occasional fatigue, but it was noted in the October 2004 VA records that the Veteran was still able to make it through a workday. Additionally, the October 2004 records indicated that the Veteran had only lost six pounds. September 2004 VA medical records noted that the Veteran was eating normally. Finally, there is no evidence of "incapacitating episodes" of acute signs and symptoms severe enough to require both bed rest and treatment by a physician in any of the privately submitted treatment letters, VA treatment records, or Veteran's statements prior to his passing. Accordingly, the severity of the Veteran's hepatitis C did not meet the requirements for an evaluation in excess of 40 percent for the period on appeal. It is noted that the Veteran was evaluated at 100 percent under DC 7312 for liver cirrhosis from July 22, 2004, to July 15, 2005. The Board finds that a separate rating is not warranted under DC 7312 prior to July 22, 2004, under the regulations prior to July 2002 or after July 2002. The record prior to July 22, 2004, does not indicate that the Veteran suffered from dilation of superficial abdominal veins or chronic dyspepsia. The persuasive evidence is against finding symptoms such as weakness, anorexia, abdominal pain, and malaise which are not already contemplated by the assigned 40 percent rating for hepatitis C. In this regard, the assigned 40 percent rating for hepatitis C contemplates symptoms of fatigue and minor weight loss and cannot simultaneously serve as the basis for a 30 percent rating under DC 7312. Accordingly, no separate rating for cirrhosis is warranted for this timeframe. The Board appreciates the sincere and honest testimony provided by the appellant and has considered her testimony in conjunction with the clinical evidence of record when determining whether a higher rating was warranted for the Veteran's hepatitis C during the timeframe on appeal. Simply put, the Veteran's hepatitis C symptoms from August 8, 2001 to July 15, 2006 were not of a severity and frequency as the symptoms associated with the higher, 60 percent rating. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.