Citation Nr: 1736605	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  06-19 657	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to an increased disability rating for hepatitis B, currently rated as 20 percent disabling.

2. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel

INTRODUCTION

The Veteran served on active duty from May 1981 to April 1985. She also had Reserve service.

This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the United States Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a February 2006 rating decision, the RO continued a 20 percent disability rating for hepatitis B.

In April 2006 Veteran had a hearing at the RO before an RO employee. The claims file contains a transcript of that hearing.

In September 2009 the Board remanded the case to afford the Veteran a Board hearing.

In November 2009 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). The claims file contains a transcript of that hearing.

In December 2009 the Board remanded the hepatitis rating issue to the RO for the development of additional evidence.

In a July 2010 rating decision the RO proposed to reduce the rating for the Veteran's hepatitis from 20 percent to 0 percent. The Veteran appealed that proposed reduction. 

In December 2010 the Veteran had a hearing at the RO before an RO employee. The claims file contains a transcript of that hearing.

In a January 2011 rating decision the RO decreased the rating from 20 to 0 percent. The Veteran appealed the reduction. In a December 2012 rating decision the RO restored the 20 percent rating, in effect continuously from the February 4, 2003, the date when the rating was increased from 0 to 20 percent.

The Veteran continued her appeal for a rating higher than 20 percent for her hepatitis. In January 2015 the Board found that the record raised the issue of entitlement to a TDIU. The Board added the TDIU issue to the issues on appeal. The Board remanded the hepatitis rating issue and the TDIU issue to the RO for the development of additional evidence.

In March 2017 the Board again remanded the hepatitis rating issue and the TDIU issue to the RO for the development of additional evidence.


FINDINGS OF FACT

1. From 2003 forward, the Veteran's hepatitis B has not been manifested by active infection, has not been the cause of any weight loss, has not been manifested by hepatomegaly, and has not been manifested by any incapacitating episodes.

2. The combined current effects of the Veteran's service-connected skin disorders and hepatitis B do not make her unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1. From 2003 forward, the manifestations and effects of the Veteran's hepatitis B have not met the criteria for a disability rating higher than 20 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.114, Diagnostic Code 7345 (2016).

2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). 

In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

The RO provided the Veteran notice in letters issued in 2003 through 2013. In those letters, the RO notified him what information was needed to substantiate claims for service connection and for a TDIU. The letters also addressed how VA assigns disability ratings and effective dates.

In the November 2009 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issues on appeal. The RO substantially fulfilled the instructions in the 2009, 2015, and 2017 Board remands.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which she might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims process, and she has done so.

Rating for Hepatitis B

The Veteran contends that the effects of hepatitis B warrant a disability rating higher than the existing 20 percent rating. She asserts that her hepatitis B is manifested by fatigue, malaise, anorexia, weight loss, weakness, nausea, vomiting, abdominal pain, muscle aches, lower back pain, reduced resistance to infections and other disorders, dizziness, lightheadedness, balance impairment, and multiple sclerosis (MS). She states that the effects of her hepatitis caused her to miss work days and eventually made her unable to work.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2.

The Court has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The VA rating schedule provides for evaluating chronic liver disease, including hepatitis B, based on such factors as: the frequency of symptoms such as fatigue, malaise, and anorexia, the extent of any weight loss, and the duration of any incapacitating episodes requiring bed rest and treatment by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7345. Under that code, a 40 percent rating is warranted if the hepatitis B is manifested by daily fatigue, malaise, and anorexia, at least minor weight loss, and hepatomegaly; or by incapacitating episodes with a total duration of at least four weeks, but less than six weeks, during the past twelve month period. Id.

During the Veteran's service she had inpatient treatment in August and September 1981. She was admitted with fatigue, lethargy, and yellow discoloration of her eyes. Testing revealed hepatitis B. Symptoms decreased with treatment. After the hospital treatment the history of hepatitis B continued to be noted in treatment and histories during her active service period and her periods of Reserve service.

In May 1998 the Veteran submitted a claim for service connection for skin disorders and hepatitis B.

On VA examination in November 1998, the Veteran reported the history of treatment for jaundice in service in 1981. She denied present fatigue, jaundice, or abdominal pain. Testing for hepatitis B was reactive.

In a June 1999 rating decision, the RO granted service connection for hepatitis B and assigned a 0 percent disability rating. The RO also granted service connection for skin disorders.

In private medical treatment of the Veteran in December 2000, testing for hepatitis B was positive.

In July 2003 the Veteran sought an increased rating for her hepatitis. She asserted that the hepatitis produced gastrointestinal disturbance, fatigue, severe anxiety, and liver damage.

On VA examination in September 2003, the Veteran reported that, after treatment in 1981 for hepatitis B, she continued to experience excessive fatigue. She related that presently she had fatigue, stomachaches, diarrhea, constipation, and muscle aches, and poor appetite. She stated that these symptoms sometimes made her miss work. She indicated that she had missed one day of work since January 2003. On the September 2003 examination, testing was for hepatitis B was negative.

In a May 2004 rating decision, the RO increased the rating for hepatitis B to 20 percent, effective in February 2003. 

In VA treatment in 2005 and 2006, the Veteran reported weakness and episodes of dizziness.

In June 2005, a longtime friend of the Veteran wrote that, in the preceding year, she noticed that the Veteran had exhaustion and flu-like symptoms that often interfered with her capacity for activities.

In July 2005 the RO received the Veteran's claim for an increased rating for hepatitis B. She stated that the effects of her hepatitis were worsening. She asserted that her hepatitis caused low back pain, stomach problems, dizziness, and reduced resistance to infections.

In July 2005 the Veteran's daughter wrote that the Veteran had declining health, decreasing immunity, and frequent flu-like symptoms. The daughter stated that the Veteran was experiencing extreme weakness, joint pain, and abdominal problems.

Also in July 2005, another friend wrote that she had known the Veteran for over 30 years. She stated that in 1981 she was aware when the Veteran was in the hospital for hepatitis B. She reported that since 1989 the Veteran had experienced extreme tiredness, and was susceptible to frequent colds, both of which differed from her experiences before she entered service.

In August 2005 the Veteran wrote that, since treatment for hepatitis B in 1981, she had experienced low back pain, stomach problems, and reduced resistance to infections and skin problems. She stated that from 2003 forward she also had experienced extreme tiredness and even more diminished resistance to colds and other infections.

On VA liver examination in January 2006 the Veteran reported that, since being diagnosed with hepatitis B in 1981, she had experienced ongoing fatigue. She indicated that presently she had weakness and constant fatigue. She reported reduced immunity resulting in skin disorder flare-ups and frequent colds. She stated that she also had severe back pain and intermittent chills. She reported that the effects of her hepatitis caused her to miss days from work, including 13 days in 2005. The examiner stated that the Veteran's abdomen was normal on examination. One test for hepatitis B was reactive and two were nonreactive. The examiner concluded that the Veteran had hepatitis B in the past, but that later she became clear of the hepatitis B virus. The examiner expressed the opinion that hepatitis B therefore was not the cause of the Veteran's present fatigue and lack of energy.

In the April 2006 RO hearing, the Veteran stated that over time her hepatitis B caused increasing fatigue, weakness, nausea, vomiting, severe colds, bronchitis, and skin disorder flare-ups. She reported that those issues caused her to miss increasing amounts of time from work. She stated that she had taken off nine times since the beginning of 2006.

In private treatment of the Veteran in May 2006, a CT dual phase liver study showed fatty infiltration of her liver.

In November 2006 and February 2007 statements, the Veteran noted the May 2006 finding of fatty infiltration in her liver. She contended that the finding supported a higher rating for her hepatitis B. In February 2007 she reported ongoing and worsening fatigue, malaise, nausea, vomiting, weakness, dizziness, weakness, and reduced immunity. She also reported intermittent pain in her low back and her side. She stated that these effects made it difficult to work and had caused her to miss many days of work.

In VA treatment in April 2007, the Veteran reported a one month history of intermittent dizziness. In August 2007 she related ongoing weekly episodes of vertigo. In October 2007 she reported that a year long history of episodes of imbalance, lightheadedness, and fatigue. In a November 2007 neurology consultation further testing was planned. In December 2007, it was noted that a brain MRI showed abnormal findings that were suggestive of MS.

In January 2008 the Veteran had private neurological consultation to evaluate whether she had MS. The neurologist found that a brain MRI showed changes compatible with MS. The neurologist recommended further testing.

In VA treatment in February 2008, the Veteran reported that a local neurologist had diagnosed MS. In March 2008 she reported loss of balance and tingling in her right upper extremity. In May 2008 a clinician noted that the Veteran's gait was unsteady and worsening.

The Veteran sought service connection for MS. In a July 2008 rating decision, the RO denied service connection for MS, including as secondary to her hepatitis. The Veteran appealed that decision to the Board. In a December 2009 decision, the Board denied service connection for MS, including as secondary to her hepatitis.

In VA treatment in March 2009 the Veteran reported vomiting and bowel incontinence. In April 2009 she related a two year history of dizziness and imbalance, and a provisional diagnosis of MS. She reported recent episodes of bowel incontinence. She also reported daily headaches, and recent numbness and burning in her lower jaw. In July 2009, a clinician noted that earlier studies were suggestive of MS, and discussed possible additional testing. In September 2009 she was seen in a VA emergency room for lightheadedness while driving to work. In 2009 VA clinicians began to treat her for MS. VA treatment notes from 2009 forward include a diagnosis of MS.

In the November 2009 Board hearing, the Veteran stated that her hepatitis caused nausea, body aches, weight loss, severe weakness, and severe fatigue. She reported a several year history of decreased appetite and weight loss. She related pain in her legs, arms, and chest. She stated that she had to go to the emergency room several times a year. She related that over the past year she had lost a considerable amount of time from work because of her hepatitis symptoms.

In a December 2009 statement, a VA clinician wrote that the Veteran was in treatment for MS, with symptoms of dizziness, imbalance, and visual blurring.

On VA liver examination in May 2010, the Veteran reported that her hepatitis B caused nausea, weakness, and weight loss. She reported near constant fatigue and malaise, daily nausea and anorexia, and intermittent vomiting. She stated that she lost about five weeks of work over the preceding year. She did not indicate that in the preceding twelve months she had experienced any incapacitating episodes. On examination she complained of pain on light palpation of her abdomen.

The examining physician reported having reviewed the claims file. The examiner noted a history of normal liver function tests. The examiner expressed agreement with a 2006 VA examination interpretation of test results, that indicated that the Veteran did not have active infection with hepatitis B virus, nor any current liver disease from hepatitis B. The 2010 examiner expressed the opinion that the Veteran's current symptoms were not related to her hepatitis.

Notes of VA treatment of the Veteran in June 2010 reflect ongoing treatment for MS. It was noted that she was tolerating the medication well, with occasional flu-like symptoms after taking the medication. In September 2010 she was seen in a VA emergency room for abdominal pain. Treating clinicians did not determine the cause. In October 2010, abdominal ultrasound showed fatty infiltration of the liver.

In VA neurology treatment in December 2010, a clinician found that recent studies were consistent with demyelinating process. The clinician's assessment was relapsing/remitting MS.

In the December 2010 RO hearing, the Veteran reported that her hepatitis caused weakness, loss of appetite, and sharp pains. She stated that her hepatitis symptoms caused her to lose of lot of time from her job at a medical center. She indicated that over the preceding twelve months she had lost nine and a half weeks.

In August 2011 the Veteran was seen in a VA emergency room for chest pain.

In VA treatment in January 2013 the Veteran related a history of hepatitis B and MS. She reported fatigue, malaise, and weakness.

In the January 2015 remand, the Board found that mixed evidence made the record unclear as to whether the Veteran's symptoms, including fatigue, weakness, and malaise, are related to her hepatitis or to a non-service-connected disability, including her MS. The Board instructed the RO to provide the Veteran a new VA examination to determine the current manifestations and severity of her hepatitis, with findings to include the effect, if any, of her hepatitis on her current level of occupational impairment.

The Veteran had a new VA hepatitis B examination in April 2015. The examiner noted that testing showed normal liver function. The examiner explained that, in most cases, acute hepatitis B does not go on to become chronic hepatitis B. The examiner found that, among the Veteran's current symptoms, the symptoms that possibly were related to her hepatitis were fatigue and myalgias. The examiner expressed the opinion that "it is as at least if not more likely" that those symptoms were caused by the Veteran's MS, and not by her hepatitis. The examiner stated that the apparent absence of ongoing hepatitis B virus, as suggested by liver function test results, could be confirmed by a hepatitis B virus DNA test. The examiner opined that, unless DNA testing shows presence of the virus, the majority of the Veteran's symptoms "can likely be" related to her MS.

Later in 2015 the Veteran had ongoing treatment for MS and for symptoms including weakness.

In the March 2017 remand, the Board instructed that the Veteran receive a new VA examination, with testing, to clarify the current manifestations and effects attributable to her hepatitis B. 

The Veteran had a VA liver conditions examination in April 2017. She asserted that her hepatitis B currently caused muscle pain and chronic fatigue. The examiner reported having reviewed the claims file. The examiner noted the Veteran's history of hepatitis B and MS. The examiner stated that in October 2014 one test was negative for hepatitis B, and a different test was equivocal as to whether hepatitis B was present. The examiner noted that the Veteran's liver appeared normal on CT in May 2015, and that liver function tests in August 2016 were normal.

The examiner concluded that the Veteran did not currently have signs or symptoms attributable to chronic or infectious liver disease. The examiner noted the evidence of past hepatitis B infection, but concluded that there was no evidence of current infection. He stated that she did not have any present symptoms or findings that were attributable to hepatitis B. He opined that, therefore, her hepatitis B likely had no effect on her current ability to work in a physical or sedentary occupation. He also indicated that, in the twelve months preceding the examination, she had not had any incapacitating episodes of symptoms attributable to her hepatitis B. In a May 2017 addendum to the April 2017 examination report, the examiner stated that the results of hepatitis B virus DNA testing in April 2017 confirmed his April 2017 conclusions.

In 2003 through 2005, the Veteran reported fatigue, malaise, and anorexia. She reported poor appetite but did not report weight loss. She did not report any incapacitating episodes of hepatitis symptoms. In 2003 through 2005 no clinician found hepatomegaly. The effects of her hepatitis in 2003 through 2005 thus did not meet or approach the criteria for a disability rating higher than 20 percent.

The Veteran has recalled and reported the frequency and extent of the symptoms that she attributes to her hepatitis B. Whether those symptoms are attributable to her hepatitis B or to other causes, including her MS, however, is a medical question. Physicians who examined her and reviewed the file in 2006 and later concluded that she no longer had active hepatitis B infection, and that none of her present symptoms were attributable to her hepatitis B. The examiners' medical training, their review of the medical records including test results, and their explanations add persuasive weight to their conclusions. On review, the greater persuasive weight of the evidence indicates that, from 2006 forward, none of the Veteran's present symptoms are attributable to her hepatitis B.

From 2006 forward, then the fatigue, malaise, and anorexia that the Veteran reported were not attributable to her hepatitis B. While some of the treatment and examination notes reflect weight loss compared to earlier measurements, no clinician has attributed any weight loss to her hepatitis. Imaging has shown evidence of fatty infiltration of the Veteran's liver, but no clinician has found that she has hepatomegaly. On examinations clinicians have concluded that she has not had incapacitating episodes of symptoms attributable to her hepatitis. Thus, the combined effects of her hepatitis B do not meet or approach the criteria for a disability rating higher than 20 percent. The Board therefore denies a higher rating.


TDIU

The Veteran contends her service-connected disabilities, including hepatitis B, caused or contributed to her missing a lot of work, and eventually becoming unable to work.

VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of disability ratings for service-connected disabilities. 38 C.F.R. § 4.16(a). A finding of entitlement to TDIU depends on the impact of a veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). For the purpose of finding a disability rated at 40 percent or more, VA considers as one disability multiple disabilities affecting a single body system, such as the orthopedic system. 38 C.F.R. § 4.16(a). 

The Veteran's disabilities for which service connection is established are acne with facial scarring, rated at 30 percent, dyshidrosis of the hands and legs, rated at 30 percent, and hepatitis B, rated at 20 percent. The combined rating is 60 percent.

In certain circumstances, including for disabilities resulting from common etiology, the ratings for multiple disabilities will be combined for purposes of determining if there is one 60 percent or at least one 40 percent disability. 38 C.F.R. § 4.16(a). The Veteran has noted that her service-connected skin disorders arose after her treatment for hepatitis B, and has suggested that the skin disorders are etiologically related to her hepatitis. The claims file does not contain any medical finding or opinion as to whether the Veteran's hepatitis and her skin disorders result from common etiology. As explained below, the combined effects of the Veteran's service-connected disabilities do not make her unable to secure a substantially gainful occupation. Therefore, it is not necessary to resolve the question of whether her service-connected disabilities result from a common etiology.

If a veteran's individual and combined ratings do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a), but the veteran's service-connected disabilities nonetheless make her or him unable to secure or follow a substantially gainful occupation, rating boards are to submit the case to the Director of the VA Compensation Service for consideration of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b).

In the November 2009 Board hearing, the Veteran stated that her physical problems made it difficult to perform her duties as a medical support assistant at a VA Medical Center (VAMC). In December 2010 she Veteran submitted a claim for a TDIU. She submitted a record of the sick and annual leave she used in 2010.

In the December 2010 RO hearing, the Veteran stated that the effects of her hepatitis included weakness, loss of appetite, and sharp pains. She reported that her hepatitis symptoms caused her to lose of lot of time from her job.

In March 2011 the Veteran wrote that, in February 2011, her service-connected illnesses had caused the end of her employment at a VAMC that she had held since 1998.

In August 2011 the United States Social Security Administration (SSA) found that the Veteran had been disabled since February 2011. SSA listed a primary diagnosis of MS, and a secondary diagnosis of a condition for which the medical evidence was insufficient for diagnosis.

In the report of an April 2017 VA liver conditions examination, the examiner concluded that the Veteran has a history of hepatitis B infection, but had no current infection, and no current symptoms attributable to the past infection. He expressed the opinion that her history of hepatitis B infection presently had no effect on her ability to work in a physical or sedentary occupation. The Board finds persuasive the 2017 examiner's opinion on the medical questions of whether the Veteran's hepatitis B produces current symptoms and whether it affects her capacity for employment. The Veteran has not suggested, and the assembled evidence does not suggest, that the combined effects of her skin disorders significantly interfere with her capacity to secure or follow a substantially gainful occupation. As the preponderance of the evidence is against the combined effects of her hepatitis B and other service-connected disabilities making her unable to secure or follow a substantially gainful occupation, the Board denies a TDIU.



	(CONTINUED ON NEXT PAGE)


ORDER

Entitlement to a disability rating higher than 20 percent for hepatitis B is denied.

Entitlement to a total disability rating based on individual unemployability is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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