BVA9415278 DOCKET NO. 92-14 325 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to an effective date earlier than October 18, 1989 for a compensable rating for post necrotic cirrhosis of the liver. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from February 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1991 and subsequent rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The determination made by the March 1991 rating decision included the denial of service connection for hepatitis and a grant of an increased rating for post necrotic cirrhosis of the liver. The cirrhosis was rated as analogous to hepatitis and assigned a 10 percent rating. The veteran's original notice of disagreement included the contention that the increase to 10 percent for cirrhosis of the liver, which was made effective October 18, 1989, by the rating action dated in March 1991, should have been made effective June 20, 1970. In his substantive appeal dated in July 1991, the veteran raised the issue of service connection for hepatitis B. A supplemental statement of the case was issued in July 1991 which notified the veteran that service connection was denied for hepatitis B. A claim for an increased rating for the service-connected psychiatric disorder was developed for appellate consideration. Following the grant of an increased rating by an RO hearing officer, the veteran withdrew the appeal of that issue, in writing, in July 1992. The Board has recently received the report of VA hospitalization from January to March 1994. No claim has been identified by the veteran in reference to these reports. The matter is referred to the RO for appropriate disposition. On the issue of entitlement to an effective date earlier than October 18, 1989 for a compensable rating for post necrotic cirrhosis of the liver, this decision will be limited to one basis for an earlier effective date, the one most strongly argued by the veteran, whether there was error in the original rating decision. In light of the grant of service connection for hepatitis contained herein, it would be inappropriate for the Board to consider at this time whether an earlier effective date could be assigned under 38 U.S.C.A. § 5110(b)(2) (West 1991) since 38 C.F.R. § 4.114 requires that cirrhosis and hepatitis be rated together on the predominant disability picture. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying service connection for hepatitis. The veteran argues that the possibility of hepatitis was noted during service. He avers that liver function abnormalities during service can not be dissociated from his current hepatitis. The veteran further contends that the RO erred in not granting an earlier effective date for a compensable rating for his liver disorder. He states that the disorder has disabled him since service and argues that he should have been compensated as of the date of his release from service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an effective date earlier than October 18, 1989 for a compensable rating for post necrotic cirrhosis of the liver; however, the evidence supports a grant of service connection for both hepatitis B and hepatitis C. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. Hepatitis B and hepatitis C had their onset during the veteran's active military service. 3. The opinion of the Board staff medical adviser supported the veteran's claim for service connection for hepatitis. Any due process error involving the opinion was harmless to the veteran and was not prejudicial to his claim. 4. The veteran did not appeal the VA rating decision of January 1971 which assigned a noncompensable rating for post-necrotic cirrhosis of the liver. 5. The rating decision of January 1971 which assigned a noncompensable rating for post-necrotic cirrhosis of the liver, did not contain clear and unmistakable error. 6. The veteran's claim for an increased rating for post-necrotic cirrhosis of the liver was received on October 18, 1989. 7. The opinion of the Board staff medical adviser did not deal with and was not relied upon in reaching the Board's the decision on the issue of entitlement to an earlier effective date for a compensable rating for post necrotic cirrhosis of the liver. Any due process error involving the opinion was harmless to the veteran and was not prejudicial to his claim. CONCLUSIONS OF LAW 1. Hepatitis B and hepatitis C were incurred during the veteran's active military service. 38 U.S.C.A. §§ 101(16), 1110, 5107 (West 1991). 2. The criteria for an effective date earlier than October 18, 1989 for a compensable rating for post necrotic cirrhosis of the liver have not been met. 38 C.F.R. §§ 3.105(a), 3.400(k) (1993). 3. There was no prejudicial error concerning the opinion of the Board staff medical adviser. 38 U.S.C.A. § 7261(b) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say that he has presented claims which are plausible. We are satisfied that VA has assisted the veteran as much as it can in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service medical records show that, following a November 1969 injury, the veteran had abdominal surgery for the removal of a ruptured spleen. During service, the veteran was hospitalized from March to June 1970, primarily for schizophrenia. Liver function tests were abnormal. A liver biopsy resulted in a diagnosis of post-necrotic cirrhosis. The veteran was seen by a specialist in April 1970. A past history of intravenous drug abuse and abdominal surgery was noted. The veteran said that he had noticed dark urine, transiently, in March 1970. Physical examination was entirely within normal limits. The specialist commented that the liver biopsy results, showing extensive necrosis with piecemeal necrosis, were suggestive of chronic, active hepatitis with post necrotic cirrhosis. It was the specialist's impression that the veteran had liver disease of etiology probably secondary to intravenous injection of Metahydrin and/or opium, resulting in either a toxic form of hepatitis or viral hepatitis, anatomy post necrotic cirrhosis with signs of chronic active hepatitis, physiology compensated, functional class I. A June 1970 esophagoscopy showed a hiatal hernia, mild esophagitis and no esophageal varices. The hospitalization concluded with diagnoses including post necrotic cirrhosis and chronic active hepatitis, suspected not proven. The diagnosis of chronic active hepatitis, suspected but not proven, was echoed on the report of the June 1970 separation examination. During VA hospitalization in July and August 1970 there was an elevated liver function test. The veteran left against medical advice. No liver disorder diagnosis was made. On VA psychiatric examination, in December 1970, the veteran complained of chest and abdominal pain and fatigue. I. An Earlier Effective Date for a Compensable Rating for Post Necrotic Cirrhosis of the Liver. The initial VA rating decision of January 1971 granted service connection for post-necrotic cirrhosis of the liver and assigned a noncompensable rating, effective the day after the veteran left active service in June 1970. The veteran did not appeal the rating and it became final. 38 U.S.C.A. § 7105(c) (West 1991). Nevertheless, if a decision contains clear and unmistakable error, it can be corrected and benefits will be paid as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.105(a), 3.400(k) (1993). Clear and unmistakable error means that: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. The claimant must assert more than disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet.App. 310, 313 (1992). At the time the rating was assigned, the veteran had walked out of a VA hospital, against medical advice, before he could be definitively studied and diagnosed by VA. The only medical records available were the service medical records which showed that a medical expert had considered the possibility of hepatitis but could only definitely diagnose post-necrotic cirrhosis. Therefore, the facts known at the time showed only the post-necrotic cirrhosis. There was no error in the RO accepting this diagnosis and rating the disability in accordance with the diagnosis. The post-necrotic cirrhosis of the liver was rated under 38 C.F.R. Part 4, Code 7312 for cirrhosis of the liver. The lowest rating provided by that code, 30 percent, requires moderate cirrhosis with dilation of superficial abdominal veins, chronic dyspepsia, slight weight loss or impairment of health. Where the residuals required for the minimum schedular evaluation are not present, a noncompensable rating will be assigned. 38 C.F.R. § 4.31 (1993). The requirements for the compensable rating had not been demonstrated on either the service department of VA medical findings. Therefore, there was no error in denying a compensable rating. 38 C.F.R. § 3.105(a) (1993). The veteran has argued that the current 10 percent rating should have been assigned at that time. The RO has recently rated the cirrhosis as analogous to infectious hepatitis and assigned a 10 percent rating. The rating criteria for infectious hepatitis specifies that a noncompensable rating will be assigned where the condition is healed, asymptomatic. A 10 percent rating requires more than liver damage demonstrated by laboratory studies, the condition must be symptomatic with mild gastrointestinal disturbance. 38 C.F.R. Part 4, Code 7345 (1993). The requirement that there be mild gastrointestinal disturbance is significant because compensation is paid for disability, not just abnormal laboratory tests. 38 C.F.R. § 4.1 (1993). There were abnormal liver test results demonstrating liver damage; however, there was no evidence of mild gastrointestinal disturbance. The report of the hospitalization in service, for 3 months prior to separation, specified that the veteran was asymptomatic. The only postservice medical record available was the report of the VA hospitalization in July and August 1970, which did not show any gastrointestinal disturbance or related symptoms. The facts of record, in 1971, showed that if the liver disorder had been rated as analogous to hepatitis at that time, it would have most closely approximated the criteria for the noncompensable evaluation. 38 C.F.R. Part 4, including § 4.7 and Code 7345 (1970). Since the facts demonstrated that the criteria for a compensable rating were not met, the RO did not err in not assigning the noncompensable rating. See Archer v. Principi, 3 Vet.App. 433 (1992). As there was no error, an earlier effective date for a a compensable rating is not warranted. 38 C.F.R. §§ 3.105(a), 3.400(k) (1993). The medical opinion obtained by the Board did not deal with this issue and it was not considered in reaching the Board's decision on this issue. II. Service Connection for Hepatitis. The next liver function tests were recorded during VA hospitalization in March and April 1987; results were abnormally high. On VA hospitalization in May 1988, liver function studies were reported as above normal. Tests for hepatitis were done during VA hospitalization from May to September 1988. These were interpreted as showing a chronic hepatitis B with low infectivity. Liver function studies again were reported as above normal. During the VA hospitalization in December 1988 and January 1989, hepatitis B, carrier state was diagnosed. Liver function test results were significantly elevated as compared to normal values. There were similar findings and diagnoses on subsequent VA hospitalizations. The veteran's claim for a higher rating for cirrhosis and service connection for hepatitis was received on October 18, 1989. The RO denied service connection for hepatitis B. The RO rated the cirrhosis as analogous to infectious hepatitis and assigned a 10 percent rating based on demonstrable liver damage with mild gastrointestinal disturbance. 38 C.F.R. Part 4, Code 7312 (1993). This reflected the RO's assessment of the disability as symptomatic as well as producing laboratory abnormalities. A chronic hepatitis B virus carrier status was diagnosed on VA hospitalizations in December 1989, January 1990 and January to February 1990. VA clinical notes show that the presence of hepatitis C was first considered in January 1991. Testing in early February 1991 showed a chronic hepatitis B carrier state and exposure to hepatitis C. In February 1991, the veteran was hospitalized by VA and extensive tests were done. These included a test for hepatitis C, which was reactive, and a liver biopsy. The preliminary biopsy results showed early cirrhosis without any evidence of fatty infiltrates or alcoholic hyaline, and with minimal inflammatory response. Diagnoses included: cirrhosis of uncertain etiology; chronic persistent hepatitis B; and hepatitis C. The summary of the April 1991 VA hospitalization reported that the previous tests demonstrated an asymptomatic chronic hepatitis B carrier state and exposure to hepatitis C. The liver biopsy was said to have shown fibrosis/cirrhosis and minimal inflammation secondary to the chronic hepatitis carrier state. On VA hospitalization from January to March 1994, there were abnormal liver studies and testing was again positive for hepatitis C. Diagnoses included a history of chronic hepatitis C and hepatitis B. Decisions of the VA must be based on medical evidence. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Board asked one of its qualified staff medical advisers if the laboratory or biopsy findings during service reflected the presence of a chronic hepatitis? The physician responded, "Yes, the comment of a gastrointestinal consultant [during service] indicates his opinion of a possible chronic hepatitis and certainly the question of chronicity is enhanced by the post necrotic cirrhosis." We also asked if the current hepatitis was present during service? The physician's response was: The records indicate that the veteran is a Hepatitis B carrier and is positive for Hepatitis C. Currently any current chronic hepatitis is fairly inactive at this time. Although the veteran might have been involved in hepatitis post service, I believe the current liver disease albeit inactive was present during service. This medical opinion relates the onset of the current hepatitis B and hepatitis C to the veteran's active military service. This opinion is based on a well explained medical analysis of the evidence. It agrees with the summary of the April 1991 VA hospitalization, which reported that the liver biopsy showed fibrosis/cirrhosis and minimal inflammation secondary to the chronic hepatitis. It supports the veteran's claim for service connection for hepatitis. Any due process error involving the opinion was harmless to the veteran and was not prejudicial to his claim. The Board concludes that the preponderance of medical evidence in this case supports the conclusion that hepatitis B and hepatitis C had their onset during the veteran's service. ORDER An effective date earlier than October 18, 1989 for a compensable rating for post necrotic cirrhosis of the liver is denied. Service connection for hepatitis B and hepatitis C is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 ______________________________ JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act of 1994, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.