Decision Date: 11/03/95 Archive Date: 01/17/96 DOCKET NO. 91-36 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased evaluation for chronic persistent hepatitis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active duty from September 1977 to September 1980. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a June 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, denying an increased evaluation for chronic persistent hepatitis. The case was previously before the Board in January 1992, at which time it was remanded to the RO to obtain medical clarification through VA gastrointestinal examination. A May 1995 hearing was cancelled at his request. On appeal, the veteran’s representative raised the issue of service connection for a psychiatric disorder, claimed incurred in service and/or secondary to the service-connected chronic persistent hepatitis. The Board notes that service connection for a psychiatric disorder was denied by the RO in January 1982 and February 1994. Although the veteran’s representative has asked that the case be remanded to the RO for consideration of service connection for a psychiatric disorder, these issues are not inextricably intertwined with the issue on appeal; thus, it is referred to the RO for appropriate action. See Kellar v. Brown, 6 Vet.App. 157 (1994) (issues are not inextricably intertwined if the disorders are rated under different diagnostic codes and an increased rating would not vary based on the other service- connected disorder). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his chronic persistent hepatitis warrants a higher evaluation than has been assigned because he has recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an increased evaluation for chronic persistent hepatitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The symptoms of the veteran’s chronic persistent hepatitis are fatigue, weakness, and occasional right upper quadrant pain, without disabling recurrent episodes of gastrointestinal disturbance. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for chronic persistent hepatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.114, Diagnostic Code 7345 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statute and judicial construction. 38 U.S.C.A. § 5107(a) (West 1991); see also Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. The relevant evidence pertaining to the issue on appeal consists of VA treatment records and the report of VA examinations in February 1990 and July 1992. Although the veteran’s representative claims that the July 1992 examination was inadequate because the report of the examination does not indicate that the claims file was reviewed prior to preparing the report, the examination was conducted by one of the veteran’s treating physicians who was familiar with the veteran’s medical history. The Board concludes, therefore, that the examination was adequate for rating purposes and that all relevant data has been obtained for determining the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1994). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Diagnostic Code 7345 provides a 100 percent evaluation for infectious hepatitis if there is marked liver damage manifested by liver function tests and marked gastro- intestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. A 60 percent evaluation applies with moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. A 30 percent evaluation applies if there is minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. 38 C.F.R. § 4.114. The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Service connection for chronic persistent hepatitis was granted in January 1982 at 30 percent, effective September 1980. This determination was based on the veteran’s service medical records that show he was treated in service for hepatitis and the reports of a VA hospitalization in September 1981 and a VA examination in December 1981, indicating he had chronic persistent hepatitis as shown by liver function and viral antigen tests. A liver biopsy in September 1981 confirmed the presence of hepatitis. October 1981 and February 1983 treatment notes indicate that the disorder was stable and a liver profile in September 1982 was within normal limits. He was hospitalized from October to November 1983 for treatment of hepatitis. There are no further complaints pertaining to hepatitis in the treatment records until February 1989, at which time his symptoms were right upper quadrant pain, jaundice, and malaise. He was treated by bed rest in February and March 1989. He was also hospitalized for five days in August 1989 for the treatment of hepatitis, at which time his symptoms were jaundice, anorexia, malaise, and fever. He was ambulatory on discharge with a high calorie, low fat, non-irritant diet. The report of a VA examination in February 1990 indicates that, at that time, the veteran was feeling well, with no icterus, a good appetite, and stable weight. In January 1991 he complained of tiredness and poor appetite, and serological tests were ordered, but the results of the tests are not of record. In May 1991 he complained of intestinal discomfort, blood in the stools, and a history of constipation, but there was no history of abdominal pain, nausea, vomiting, or anorexia. Physical examination revealed that the abdomen was not distended, with no tenderness, no masses, and no visceromegaly. The symptoms were assessed to rule out internal hemorrhoids. A May 1992 admission note indicates that the veteran complained of occasional right upper quadrant pain after fatty meals, but reported no nausea, vomiting, anorexia, or fever. A hepatitis antigen test was negative. Physical examination revealed that the abdomen was depressible, not distended or tender with no masses or visceromegaly. The stated assessment indicates that the symptoms were indicative of gall bladder disease. A June 1992 treatment note for the evaluation of the right upper quadrant pain indicates that the veteran had a history of hepatitis, but that he had developed immunity. He reported no nausea or vomiting and an abdominal sonogram indicated gall bladder sludge. The report of the VA examination in July 1992 shows that the veteran had no jaundice, fever, nausea, vomiting, anorexia, or weight loss since he was hospitalized in November 1991 for a psychiatric disorder. He denied any history of gastrointestinal bleeding and had no gastrointestinal complaints. Physical examination failed to reveal any icterus or asterixis, and there was no stigma of chronic liver disease. His abdomen was soft, depressible, and nontender, with no hepato-splenomegaly and no ascites. There was no abdominal discomfort, food intolerance, nausea or vomiting, pain, anorexia, malaise, weight loss, or weakness. The report of the examination provides a diagnosis of chronic, active hepatitis, but a serological study in October 1992 did not show any elevated liver enzymes. A radiographic study of the liver and spleen in July 1992 revealed no abnormalities. In January 1993 the veteran reported intermittent post prandial right upper quadrant pain of one month’s duration, that was not related to nausea or vomiting, but was associated with heartburn. There was no choluria or acholia. Physical examination revealed that the abdomen was nontender and depressible, with no masses or visceromegaly. The symptoms were diagnosed as a cervical muscle spasm. He complained of right upper quadrant pain again in March 1993, but physical examination disclosed no jaundice, no stigmata of liver disease, no visceromegaly, and no edema. The symptoms were assessed as muscle pain. Serological testing showed elevated liver enzymes in April 1993 and February 1994, but test results in March 1994 were within normal limits. In April 1994 he again complained of right upper quadrant pain and weakness, and serological testing produced a positive result for the hepatitis C antigen. A May 1994 treatment note indicates that the veteran complained of fatigue, weakness, and occasional right upper quadrant pain. Serological testing showed that the veteran’s serum was negative for hepatitis B antigen, positive for hepatitis B antibodies, and positive for hepatitis C antibodies. Physical examination revealed that the abdomen was soft, nontender, with no masses or visceromegaly. The examining physician stated that the veteran had a past history of hepatitis B, that resolved with adequate antibody formation, and that he was currently found to have hepatitis C. This analysis is supported by a December 1994 VA serological testing report. The medical evidence also shows that the veteran received regular treatment from July 1982 to September 1993 for a psychiatric disorder variously diagnosed as an anxiety disorder, personality disorder, depression, and substance use disorder. The report of a VA psychiatric examination in October 1993 shows that the veteran reported the use of heroin and alcohol when he became depressed. The examiner reviewed the veteran’s medical record prior to the examination and diagnosed the veteran’s psychiatric symptoms as substance use disorder, mixed substance use and borderline personality disorder. The examiner also stated that there was no relationship between the veteran’s psychiatric disorder and his hepatitis. Comparison of the veteran’s symptoms of hepatitis with the criteria shown in 38 C.F.R. § 4.114 indicates that the criteria for an evaluation in excess of 30 percent have not been met. The evidence shows that the veteran had two exacerbations of hepatitis in 1989, but none further until April 1994. The current symptoms of hepatitis are fatigue, weakness, and occasional right upper quadrant pain, without disabling recurrent episodes of gastrointestinal disturbance evidenced by abdominal discomfort, food intolerance, nausea, vomiting, anorexia, or weight loss. Although the veteran claims that he has recurrent episodes of gastrointestinal disturbance, this is not supported by the evidence. The examiner who conducted the October 1993 VA psychiatric examination indicated that the veteran’s psychiatric symptoms were not related to his hepatitis. There is no indication that the veteran has more than minimal liver damage, and the exacerbations of symptomatology are not of sufficient frequency to support an increased evaluation. There is no question regarding which of two evaluations would more properly classify the severity of his service-connected disability. 38 C.F.R. § 4.7. There is no indication that the case presents an exceptional or unusual disability picture to warrant an extra-schedular rating. 38 C.F.R. § 3.321(b). ORDER The claim for an increased evaluation for chronic persistent hepatitis is denied. J. F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, 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.