Citation Nr: 0821665 Decision Date: 07/02/08 Archive Date: 07/14/08 DOCKET NO. 05-21 423A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for hepatitis C with cirrhosis of the liver. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1966 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2004 and June 2005 rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified before the undersigned at a November 2007 Travel Board hearing. A transcript has been associated with the file. FINDING OF FACT Hepatitis C with cirrhosis of the liver is manifested by daily fatigue, malaise, abdominal pain, and nausea, with hepatomegaly. CONCLUSION OF LAW The criteria for a 40 percent initial evaluation for hepatitis C with cirrhosis of the liver have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 7312-7354 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the veteran's claim for entitlement to an initial evaluation in excess of 10 percent for hepatitis C with cirrhosis of the liver, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim, a February 2004 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although notice was not provided to the veteran prior to the initial adjudication of this claim informing him that a disability rating and an effective date would be assigned should the claim of service connection be granted, the Board finds that the veteran has not been prejudiced. "In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). The letter also essentially requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). The veteran's service medical records, VA medical treatment records, VA examination reports, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In November 2007, the veteran waived his right to have the RO readjudicate his claim with newly submitted evidence. See 38 C.F.R. § 20.1304(c) (2007). Although new evidence was received by the Board in June 2008 without a waiver, remand is not required because the evidence relates solely to the veteran's mental disorder and is thus not pertinent. 38 C.F.R. § 20.1304(c) (holding that newly submitted pertinent evidence must be referred to RO it no accompanied by a waiver). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2007). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes, however, that this rule does not apply here, because the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. In a June 2004 rating decision, the RO denied service connection for cirrhosis of the liver and granted service connection for hepatitis C and assigned a 10 percent evaluation under 38 C.F.R. § 4.114, Diagnostic Code 7354, effective December 8, 2003. In June 2004, the veteran filed a notice of disagreement regarding the disability evaluation. In a June 2005 rating decision, the RO granted service connection for cirrhosis of the liver and determined that it should be evaluated with hepatitis C based on identical symptomatology, under 38 C.F.R. § 4.114, Diagnostic Code 7312-7354. Also in June 2005, the RO issued a statement of the case continuing the 10 percent evaluation for hepatitis C with cirrhosis of the liver. Thereafter, the veteran perfected his appeal of the evaluation. The veteran's current 10 percent evaluation contemplates hepatitis C with cirrhosis of the liver manifested by 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 1 week but less than 2 weeks during the past 12-month period. 38 C.F.R. § 4.114, Diagnostic Code 7354. For hepatitis C, a 20 percent rating is assigned for 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 2 weeks, but less than 4 weeks, during the past 12- month period; a 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or incapacitating episodes (with the above- noted symptoms) having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12-month period; a 60 percent rating is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or incapacitating episodes (with the above-noted symptoms) having a total duration of at least 6 weeks during the past 12-month period, but not occurring constantly; and a 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. Sequelae of hepatitis C, such as cirrhosis of the liver, are evaluated under an appropriate diagnostic code, but the same symptoms must not be used as the basis for an evaluation under Diagnostic Code 7354 and another diagnostic code for the sequelae. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 1. An incapacitating episode is a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 2. Substantial weight loss is a loss of greater than 20 percent of the individual's baseline weight, sustained for 3 months or longer. 38 C.F.R. § 4.112 (2007). Minor weight loss is a weight loss of 10 to 20 percent of the baseline weight, sustained for 3 months or longer. 38 C.F.R. § 4.112. Baseline weight means the average weight for the 2 year period preceding onset of the disease. 38 C.F.R. § 4.112. In VA medical treatment records from 2003 through 2007, the veteran reported constant fatigue. The diagnosis was hepatitis C with cirrhosis of the liver. In a February 2004 VA record, the veteran reported fatigue. At a January 2005 VA genitourinary examination, the veteran reported decreased energy but denied weakness, anorexia, and weight loss or gain. At a May 2005 VA liver examination, the veteran reported fatigue, weakness, malaise, abdominal pain, and nausea, but denied vomiting. A May 2005 liver ultrasound found hepatomegaly. In a July 2006 VA record, the examiner noted that a 1999 liver sonogram showed hepatomegaly. At a June 2007 VA genitourinary examination, the veteran reported lethargy and weakness but no anorexia and stable weight over the last year. In a July 2004 lay statement, the veteran reported that an hour or 2 of normal activity produced days of fatigue, 2 to 3 times per week. He stated that prior to June 2004 he lived alone and had been unable to cook, do laundry, answer or make phone calls, or drive. He reported extreme fatigue and that he was not physically able to work. In May 2005, the veteran reported extreme fatigue. He stated that if he did chores for 90 minutes he had to rest in bed for the remainder of the day. In March 2007, the veteran asserted that he had extreme fatigue upon short and mild exertion. He stated that this fatigue required bedrest 2 to 3 times per week. He also reported low energy, malaise, and nausea. At the November 2007 Board hearing, the veteran testified that that after his weekly Interferon shot, he was so exhausted he couldn't get out of bed for 2 days. He also reported a lack of energy, abdomen pain, nausea, and a loss of 20 pounds over the last 2 months. The evidence of record indicates that an increased evaluation for hepatitis C with cirrhosis of the liver is warranted. The medical evidence of record shows that the veteran has consistently reported daily fatigue and malaise. Beginning in 2005, the veteran also reported weakness, abdominal pain, and nausea. The veteran's testimony is competent to establish his symptoms. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992) (holding that a layperson is competent to provide evidence on the occurrence of observable symptoms). In 2005, a liver ultrasound found hepatomegaly. Thus, the veteran's symptoms more closely approximate the requirement for a 40 percent, rather than 10 percent, evaluation. See 38 C.F.R. § 4.7 (2007) (noting that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating). Accordingly, and resolving all reasonable doubt in favor of the veteran, see Gilbert v. Derwinski, 1 Vet. App. 49 (1990), a 40 percent evaluation for service-connected hepatitis C with cirrhosis of the liver is warranted. An evaluation in excess of 40 percent is not warranted for hepatitis C with cirrhosis of the liver. 38 C.F.R. § 4.114, Diagnostic Code 7354. The medical evidence of record does not demonstrate substantial weight loss or incapacitating episodes with symptoms such as anorexia and arthralgia, and right upper quadrant pain. 38 C.F.R. § 4.114, Diagnostic Code 7354 (holding that a 60 percent rating is assigned for 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 6 weeks during the past 12-month period, but not occurring constantly). The Board has considered other potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For cirrhosis of the liver, a 50 percent evaluation is warranted for a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis); a 70 percent evaluation is warranted for a history of two or more episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks; and a 100 percent 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). 38 C.F.R. § 4.114, Diagnostic Code 7312. But the medical evidence of record does not demonstrate portal hypertension, splenomegaly, episodes of ascites, or jaundice. Additionally, there is no other chronic liver disease without cirrhosis and there has been no liver transplant. 38 C.F.R. § 4.114, Diagnostic Codes 7345, 7351 (2007). Accordingly, an initial evaluation in excess of 40 percent for hepatitis C with cirrhosis of the liver is not warranted. The Board has also considered the issue of whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2007). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Floyd v. Brown, 9 Vet. App. 88 (1996). In this regard, the schedular evaluations in this case are not inadequate. A rating in excess of 40 percent is provided for certain manifestations of hepatitis C with cirrhosis of the liver but the medical evidence reflects that those manifestations are not present in this case. Moreover, there is no evidence of an exceptional disability picture. The veteran has not required hospitalization and marked interference of employment has not been shown due to hepatitis C with cirrhosis of the liver. In the absence of any additional factors, the RO's failure to consider referral of this issue for consideration of an extraschedular rating or failure to document its consideration did not prejudice the veteran. Upon review of the entire evidence of record, a rating in excess of 40 percent is not warranted at any time during the pertinent time period. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); see also Fenderson, 12 Vet. App. at 126. ORDER An initial evaluation of 40 percent, but no more, for hepatitis C with cirrhosis of the liver is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs