LIVER CIRRHOSIS OF

R.R. WATKINS · 2025 · Case ID: 25011758

MIXED

Summary

The veteran, who served in the Army from October 1966 to October 1968, appeals the denial of an increased rating for his service-connected cirrhosis of the liver with hepatitis C. The Board reviewed the case, noting prior remands for additional development. The veteran sought an increased rating, claiming worsening symptoms including daily fatigue, weakness, abdominal pain, and malaise. The Board considered the rating criteria under Diagnostic Codes 7312 (cirrhosis) and 7354 (hepatitis C), both before and after regulatory changes, applying the more favorable criteria. VA examinations in August 2024 and May 2025 documented the veteran's symptoms, with the latter noting a worsening of symptoms but no change in diagnosis. The Board found that the veteran's symptoms, including daily fatigue, weakness, malaise, arthralgia, and minor weight loss, warranted a 40 percent rating under the applicable criteria for hepatitis C, effective January 13, 2016. The Board determined that a higher rating was not warranted due to a lack of evidence for more severe symptoms like ascites or hepatic encephalopathy. The Board also addressed a procedural issue regarding representation, finding no due process violation. The claim for a separate compensable rating for traumatic brain injury (TBI) was remanded due to inadequate compliance with prior remand instructions regarding tinnitus and headaches.

Rationale

Veteran's symptoms of daily fatigue, weakness, malaise, arthralgia, and minor weight loss meet criteria for 40% rating.; More severe symptoms like ascites, hepatic encephalopathy, or variceal hemorrhage not sufficiently evidenced.; Applied more favorable rating criteria (DC 7354) for the appeal period.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-11 234

Full Decision Text

Citation Nr: 25011758
Decision Date: 09/16/25 Archive Date: 09/16/25

DOCKET NO. 20-11 234
DATE: September 16, 2025

ORDER

Entitlement to an increased rating of 40 percent, but no higher, for cirrhosis of the liver with hepatitis C with laceration, liver, residuals (previously rated as hepatitis C with laceration, liver, residuals, shell fragment wound) from January 13, 2016, is granted.

REMANDED

Entitlement to a separate compensable rating for traumatic brain injury (TBI) is remanded.

FINDING OF FACT

Resolving all doubt in the Veteran's favor, throughout the appeal period, the service-connected cirrhosis of the liver with hepatitis C has been manifested by symptoms such as fatigue, weakness, abdominal pain, and malaise; there was no evidence of substantial weight loss, ascites, hepatic encephalopathy, hemorrhage from varices, portal gastropathy, hepatomegaly, or incapacitating episodes having a duration of at least four weeks during the past 12-month period.

CONCLUSION OF LAW

The criteria for an increased rating of 40 percent, but no higher, for service-connected cirrhosis of the liver with hepatitis C are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7345.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the Army from October 1966 to October 1968.

This matter was previously before the Board of Veterans' Appeals (Board) in August 2023 and March 2025, and remanded for additional development to include obtaining contemporaneous VA examinations that address the nature and severity of the disabilities on appeal. The matter has been returned to the Board for appellate review

During the appeal period, a December 2024 rating decision increased the disability rating for the service connected cirrhosis of the liver with hepatitis C, from a noncompensable (0 percent) rating to a 30 percent rating, effective August 20, 2024. However, as such does not constitute a full grant of the benefits sought throughout the period on appeal, the increased rating claim remains in appellate status.

The Board acknowledges the Veteran's representative's assertion of a "Continued Administrative Error Note," contained in the July 2025 Appellate Brief, whereby the July 16, 2025, letter notifying the Veteran that his appeal had been returned to the Board (i.e., certification letter), "continues to provide instructions referencing an ability to change representation not possible under the cited Board regulation for returned, remanded appeals." See July 2025 BVA Docketing Letter.

Under 38 C.F.R. § 20.1305(a), any time an appeal is certified to the Board for appellate review and the record is transferred to the Board, the claimant in a legacy appeal, such as this, as defined in § 19.2(c) of this chapter, and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1305(a).

In the present case, the Veteran was sent the July 2025 BVA Docketing letter advising him that his appeal had been certified, albeit re-certified, and transferred to the Board by the AOJ and informed of the time limits for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence described in 38 C.F.R. § 20.1305.

With the above in mind, the Board concludes that the Veteran has been accorded the full right to representation in all stages of his appeal by a recognized organization, and thus, he has not been denied due process, including the denial of the right to representation through action or inaction by VA or the Board. 38 C.F.R. §§ 38 C.F.R. § 20.5, 20.1000(a)(1). As such, the Veteran is not prejudiced by the Board appellate consideration of this matter. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be
organization, and thus, he has not been denied due process, including the denial of the right to representation through action or inaction by VA or the Board. 38 C.F.R. §§ 38 C.F.R. § 20.5, 20.1000(a)(1). As such, the Veteran is not prejudiced by the Board appellate consideration of this matter. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court of Appeals for Veterans Claims (Court) has since extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

VA received the Veteran's increased rating claim for cirrhosis of the liver with hepatitis C on January 13, 2016. The appeal period before the Board begins one year prior to January 13, 2016, the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran is rated as noncompensable from August 1, 2000, under DCs 7311-7345. The December 2024 rating decision assigned a 30 percent rating under DC 7312, effective August 20, 2024 (date of VA examination). As this was not a full grant of benefits sought, the Board will adjudicate whether the Veteran is entitled to a compensable rating prior to August 20, 2024, and a rating higher than 30 percent from August 20, 2024, onward.

The Board is mindful that there were regulatory changes to the criteria for digestive system Diagnostic Codes effective May 19, 2024. See Landgraf v. USI Film Products, 511 U.S. 244 (1994); Karnas v. Derwinski, 1 Vet. App. 308 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In sum, the old and new regulations are both for consideration with regard to rating the Veteran's disability, and the more favorable regulation will be applied, with the exception that if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the regulatory change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00.

Under the new criteria for DC 7312, a 10 percent rating is warranted for liver disease with Model for End-Stage Liver Disease score greater than 6 but less than 10; or with evidence of either anorexia, weakness, abdominal pain or malaise. A 30 percent rating is warranted for liver disease with Model for End-Stage Liver Disease score of 10 or 11; or with signs of portal hypertension such as splenomegaly or ascites (fluid in the abdomen) and either weakness, anorexia, abdominal pain, or malaise. A 60 percent rating is warranted for liver disease with Model for End-Stage Liver Disease score greater than 11 but less than 15; or with daily fatigue and at least one episode in the last year of either (1) variceal hemorrhage, or (2) portal gastropathy or hepatic en
less than 10; or with evidence of either anorexia, weakness, abdominal pain or malaise. A 30 percent rating is warranted for liver disease with Model for End-Stage Liver Disease score of 10 or 11; or with signs of portal hypertension such as splenomegaly or ascites (fluid in the abdomen) and either weakness, anorexia, abdominal pain, or malaise. A 60 percent rating is warranted for liver disease with Model for End-Stage Liver Disease score greater than 11 but less than 15; or with daily fatigue and at least one episode in the last year of either (1) variceal hemorrhage, or (2) portal gastropathy or hepatic encephalopathy. A 100 percent rating is warranted for liver disease with Model for End-Stage Liver Disease score greater than or equal to 15; or with continuous daily debilitating symptoms, generalized weakness and at least one of the following: (1) ascites (fluid in the abdomen), or (2) a history of spontaneous bacterial peritonitis, or (3) hepatic encephalopathy, or (4) variceal hemorrhage, or (5) coagulopathy, or (6) portal gastropathy, or (7) hepatopulmonary or hepatorenal syndrome.

Under DC 7345, chronic liver disease without cirrhosis, a 0 percent rating is warranted if the condition is asymptomatic. A 20 percent rating is warranted for chronic liver disease with at least one of the following: (1) intermittent fatigue, (2) malaise, (3) anorexia, (4) hepatomegaly, or (5) pruritus. A 40 percent rating is warranted for progressive chronic liver disease requiring continuous medication and causing minor weight loss and at least two of the following: (1) daily fatigue, (2) malaise, (3) anorexia, (4) hepatomegaly, (5) pruritus, and (6) arthralgia. A 60 percent rating is warranted for progressive chronic liver disease requiring continuous medication and causing substantial weight loss and at least two of the following: (1) daily fatigue, (2) malaise, (3) anorexia, (4) hepatomegaly, (5) pruritus, and (6) arthralgia. A 100 percent rating is warranted for Progressive chronic liver disease requiring use of both parenteral antiviral therapy (direct antiviral agents), and parenteral immunomodulatory therapy (interferon and other); and for six months following discontinuance of treatment.

Prior to the regulatory change, under Diagnostic Code 7312 for cirrhosis of the liver, a 10 percent rating is warranted 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 for history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating is warranted for a 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 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 (erosive gastritis).

Also prior to the regulatory change, under Diagnostic Code 7354 for hepatitis C, a 10 percent rating is warranted for hepatitis C with intermittent fatigue, malaise, and anorexia, 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 one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted for hepatitis C with daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, 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 two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted for hepatitis C with daily fatigue, mal
xia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted for hepatitis C with daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, 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 two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating is warranted for hepatitis C with 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. A 60 percent rating is warranted for hepatitis C 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 100 (maximum) percent rating is warranted for hepatitis C with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114.

The rating criteria for evaluating cirrhosis of the liver largely overlaps with the criteria for evaluating hepatitis C. Diagnostic Code 7354 for hepatitis C explicitly states that sequelae (meaning, an abnormal condition resulting from a previous disease) of hepatitis C, such as cirrhosis, is to be evaluated under the appropriate Diagnostic Code, except to the extent that the signs and symptoms of both disabilities overlap. See Diagnostic Code 7354, Note (1). The Veteran may not be compensated for the same symptoms twice, even if they are due to both his Hepatitis C and cirrhosis of the liver. See 38 C.F.R. § 4.14,

The Veteran was afforded a VA examination in August 2024. The Veteran reported that his condition has worsened, and he that he experiences daily pain but was not currently on any prescribed medication. The examiner noted a diagnosis of cirrhosis of the liver and hepatitis C with laceration, liver, residuals, shell fragment wound. The symptoms attributable to hepatitis C included arthralgia and pain in the liver area. Regarding the cirrhosis of the liver, it was indicated that signs and symptoms included weakness, daily fatigue, and abdominal pain. The examiner noted that the Veteran's cirrhosis of the liver and hepatitis C condition does not impact his ability to work. See August 2024 C&P Examination.

The Veteran was recently afforded another examination in May 2025. He reported ongoing daily pain to generalized joint/abdominal pain and fatigue. The symptoms attributable to hepatitis C included daily fatigue, malaise, and arthralgia. The examiner noted that the Veteran has cirrhosis of the liver but that treatment is not medically contraindicated for both parenteral antiviral therapy and parenteral immunomodulatory drugs. Signs and symptoms of the cirrhosis included daily fatigue and abdominal pain. The examiner remarked that "there is a worsening of the veteran's symptoms however no change to the service connected diagnosis and no additional diagnoses have been rendered." See May 2025 C&P Examination.

VA treatment records consistently note the Veteran reported experiencing daily fatigue, abdominal pain, low energy, and weakness. A December 2015 Pharmacy Note notated the following: "chronic HCV genotype 1a with cirrhosis on imaging 11/4/2015 who presents today for on-treatment monitoring of Harvoni + RBV week 8 of 12 planned weeks. Patient was treatment experienced (NR 34 week Pegasys/RBV: mood swings, anger, fatigue, hurt to be touched) prior to starting Harvoni." See CAPRI. A May 2022 GI Advanced Liver Disease Note indicated that the Veteran has a "history of cured HCV, cirrhosis"; that he was last seen in the clinic in February 2021; and that since last seen in the ER he has complained of right flank pain, felt mostly with walking a long distance. See CAPRI.

When the Veteran filed his increased
with cirrhosis on imaging 11/4/2015 who presents today for on-treatment monitoring of Harvoni + RBV week 8 of 12 planned weeks. Patient was treatment experienced (NR 34 week Pegasys/RBV: mood swings, anger, fatigue, hurt to be touched) prior to starting Harvoni." See CAPRI. A May 2022 GI Advanced Liver Disease Note indicated that the Veteran has a "history of cured HCV, cirrhosis"; that he was last seen in the clinic in February 2021; and that since last seen in the ER he has complained of right flank pain, felt mostly with walking a long distance. See CAPRI.

When the Veteran filed his increased rating claim in January 2016, he was not afforded a VA examination until August 2024. Of note, review of the Veteran's post-service treatment records shows that he was being followed for hepatitis C and cirrhosis of the liver. However, there is not much discussion of the severity of the Veteran's symptoms, such that would support a rating higher than that being assigned in this decision. While the Veteran's weight fluctuated during the period on appeal, the records available for the Board's review during the period on appeal do not show weight loss.

Here, the Board finds that an initial 40 percent rating is warranted for cirrhosis of the liver and hepatitis C. The Veteran's symptoms for cirrhosis and hepatitis C somewhat overlap with one another, which appears to be the reason the AOJ combined these ratings. Further, malaise is an important symptom under Diagnostic Codes 7312 and 7354; that symptom was only attributed to his hepatitis C on the May 2025 VA examination. As will be discussed below, if rated separately, it would amount to a lower individual ratings, than if the symptoms of the two separate conditions were combined.

The Board finds that a rating under Diagnostic Code 7354 (prior to the regulatory changes) is more advantageous to the Veteran because it allows for a 40 percent rating, instead of a 30 percent rating under Diagnostic Code 7312. In this regard, a 30 percent rating under Diagnostic Code 7312 is warranted for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. Further, a 50 percent rating requires a history of one episode of ascites, hepatic encephalopathy, or hemorrhage, which are not reflected in the evidence before the Board. Given that the Veteran has not been shown to have a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), a rating higher than 30 percent is not warranted under Diagnostic Code 7312.

In contemplating the rating criteria for Diagnostic Code 7354 discussed above, for the entire appeal period, the Veteran was shown to have daily fatigue, weakness, and malaise. He did not have incapacitating episodes or anorexia, but he did show minor/fluctuating weight loss during the period on appeal. Further, he was shown to have arthralgia. Based on the foregoing, the Board finds that a 40 percent rating for cirrhosis of the liver and hepatitis C is warranted from January 13, 2016 (date of increased rating claim). However, a 50 percent rating is not warranted under Diagnostic Code 7312, and a 60 percent rating is not warranted under Diagnostic Code 7354, because the Veteran has not been shown to have one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), or substantial weight loss.

The Board will turn to whether separate ratings are warranted. If cirrhosis were to be rated on its own, the Board finds that a 10 percent rating would be warranted for cirrhosis with symptoms such as weakness, anorexia, abdominal pain, and malaise. At the 2024 VA examination, he showed weakness, abdominal pain, and daily fatigue, which meets the criteria for a 10 percent rating.

If hepatitis C were rated on its own, a 20 percent rating would be appropriate, with pain, daily fatigue and arthralgia. At the august 2024 VA exam, the hepatitis C was not shown to cause malaise or anorexia. As such, a 10 percent rating under Diagnostic Code 7312 and a 20 percent rating under Diagnostic Code 7354, would amount to a combined 30 percent rating, which is lower than a 40 percent rating assigned herein under Diagnostic Code 7354 based on the combined symptoms of both conditions.

Based on the foregoing, a 40 percent rating, but no
abdominal pain, and daily fatigue, which meets the criteria for a 10 percent rating.

Based on the foregoing, a 40 percent rating, but no higher, for cirrhosis of the liver with and hepatitis C is granted for the entire appeal period. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because otherwise the evidence is persuasively against the assignment of a higher rating beyond that awarded by this decision. 38 U.S.C. §5107 (b); 38 C.F.R. §§ 4.3, 4.114.

REASONS FOR REMAND

Entitlement to a separate compensable rating for traumatic brain injury (TBI) is remanded

The March 2025 remand directed a VA examiner to specifically address whether the Veteran's reported tinnitus and headaches are subjective complaints associated with residuals of his TBI or are manifestations of a distinct comorbid diagnosis. The Veteran was afforded a VA TBI examination in May 2025. However, the examiner did not address whether the subjective complaints of tinnitus and headaches were properly considered TBI residuals or part of a distinct comorbid diagnosis as was instructed by the prior Board remand. The Board thus finds that there has not been substantial compliance with the March 2025 remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), and must remand this issue once more.

The matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA treatment records, and any relevant, outstanding private treatment records.

2. Obtain an addendum opinion from an examiner regarding whether the Veteran's reported tinnitus and headaches are subjective complaints associated with residuals of his TBI or are manifestations of a distinct comorbid diagnosis.

(Continued on the next page)

A rationale for any opinion offered must be provided.

If the requested opinion cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

R.R. Watkins

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rogers, N. M.

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.

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