Citation Nr: 1002416 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 08-28 757 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial evaluation in excess of 20 percent disabling for hepatitis C. ATTORNEY FOR THE BOARD S. Flot, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to May 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Jurisdiction over the Veteran's case subsequently was transferred to the RO in San Juan, the Commonwealth of Puerto Rico. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's hepatitis C was not manifested by daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. 2. The Veteran's symptoms of abdominal pain, malaise, and weight loss were considered in his separate evaluation for cirrhosis and therefore cannot also be taken into account to establish his entitlement to a higher evaluation for hepatitis C. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent disabling for hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.14, 4.112, 4.114, Diagnostic Code 7354 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Prior to the initial AOJ decision in this matter, the Veteran was notified by letter dated in March 2005 of the evidence required to establish service connection, the evidence not of record necessary to substantiate his claim for service connection, and the Veteran's and VA's respective duties for obtaining evidence. Thereafter, the Veteran was granted service connection and assigned an initial disability rating and effective date. As his claim was more than substantiated in that it was proven, the purpose that the notice is intended to serve has been fulfilled and no additional notice is required. Dingess, 19 Vet. App. at 490-91. Further, any defect in the notice that was provided is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board therefore finds that VA's duty to notify has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained the Veteran's service treatment records, VA outpatient treatment records, and private treatment records from Dr. W.M.P. The Veteran was afforded VA examinations in August 2005 and April 2008. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, the Board finds that all necessary development has been accomplished, and no further assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Higher Initial Evaluation The Veteran seeks a higher initial disability evaluation for hepatitis C. The RO granted service connection for hepatitis C in a November 2005 rating decision. At that time, a 20 percent disability rating was assigned effective March 3, 2005. The Veteran perfected an appeal of this decision. He contends that his hepatitis C is more severe than contemplated by a 20 percent disability rating. Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities and the criteria for specific percentage ratings for the disabilities. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. The evaluation assigned is determined by comparing the extent to which a Veteran's service-connected disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with a schedule of ratings. Id.; 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When an appeal arises from the initially assigned rating, as is the case here, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Pyramiding, the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Secretary shall give the benefit of the doubt to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected hepatitis C is currently rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354. Pursuant to this regulation, a 20 percent rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) requiring dietary restriction or continuous medication or for 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 40 percent is assigned for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or for 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. Id. A 60 percent rating is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly or for 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. Id. The highest rating of 100 percent evaluation is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. "Minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. "Substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. Id. "Baseline weight" is the average weight for the 2 year period preceding onset of the disease. Id. "Incapacitating episode" is defined as 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. A letter from Dr. W.M.P. dated in February 2005 indicated that at that time, the Veteran took Pegylated Interferon for the management and treatment of his hepatitis C. In August 2005, the Veteran was afforded a Compensation and Pension (C&P) examination with respect to this condition. The Veteran noted that he had been diagnosed with hepatitis C in 1991. He reported easy fatigue, gastrointestinal disturbances, aches and pains in his joints, nausea and vomiting, and loss of appetite but denied jaundice. The Veteran indicated that his current treatment regime included Interferon injections twice per week and Ribavirin twice a day. Upon examination, the Veteran weighed 186 pounds. There was no palmar erythema or spider nevi. No ascites was found, and there was no sign of varices, hemorrhages, portal hypertension, jaundice, or liver failure. There also was no sign of cirrhosis, though the examiner noted that cirrhosis was a diagnosis by biopsy. Blood work was positive for hepatitis C. The examiner diagnosed with Veteran with hepatitis C with symptoms of nausea and vomiting. The Veteran received a psychiatric treatment evaluation from VA in January 2008. He reported good mood, sleep, appetite, concentration, and motivation. He further reported that his energy is up and down, but that he otherwise feels well. Upon examination, the Veteran was found to be a good candidate for hepatitis C treatment. He subsequently underwent a liver biopsy in March 2008, which revealed cirrhosis. Clinical symptoms and radiological evidence of cholelithiasis also were found, and the Veteran's VA treating physicians recommended in an April 2008 treatment note that he undergo an elective cholecystecomy prior to commencing hepatitis C treatment. In April 2008, the Veteran was afforded a VA C&P liver, gall bladder, and pancreas examination. The Veteran indicated that he had been treated with alpha interferon therapy for hepatitis C in the past, and that he soon would start combination therapy. He complained of malaise and pain in his upper abdomen, particularly in the right upper quadrant. He indicated that the pain is sharp and reported that while it is constant, it gets worse two to three hours after meals. He denied weakness, anorexia, abdominal distension, jaundice, and other symptoms. The Veteran noted over 7 episodes of colic or other abdominal pain, distention, nausea, or vomiting within the past 12-month period, with each episode lasting one day. However, he reported no incapacitating episodes during the past 12-month period. Upon examination, the Veteran weighed 197 pounds. No weight change was noted, and there was evidence of malnutrition. There also was no evidence of ascites or portal hypertension. The Veteran's liver was normal in size and consistency but tender in the right upper quadrant. A computed tomography (CT) scan of the Veteran's abdomen and pelvis revealed, in pertinent part, no focal liver lesions. The examiner diagnosed the Veteran with cirrhosis and opined that this condition was caused by his hepatitis C. He indicated that this condition had mild effects on the Veteran's ability to do chores, go shopping, exercise, travel, or engage in recreational activities, a moderate effect on his ability to play sports, and significant effects on his occupational activities, causing decreased concentration and pain. He could not determine whether the Veteran's right upper quadrant pain was due to hepatitis, gallstones also found upon examination, or some combination thereof. Subsequent VA treatment notes indicate that the Veteran underwent a cholecystectomy in August 2008. He tolerated the procedure well and began hepatitis C treatment. The Veteran weighed 169 pounds in December 2008 and 206 pounds in March 2009. In April 2009, the Veteran stopped combination therapy after 14 weeks because he was a non-responder. In light of the evidence of record, the Board finds that the Veteran's hepatitis C does not warrant an evaluation in excess of 20 percent disabling for any period on appeal. Although the Veteran reported malaise, fatiguing easily, and that his energy is up and down, there is no indication that he experiences these symptoms daily. There also is no indication that these symptoms are accompanied by hepatomegaly and minor weight loss. Rather, the Veteran's liver size was normal at his April 2008 VA C&P examination, and no evidence of weight change or malnutrition was found. The Board acknowledges that subsequently, the Veteran lost weight. However, his weight of 169 pounds as of December 2008 was not sustained for a period of three months or longer. Indeed, the Veteran weighed 206 pounds as of March 2009, slightly heavier than his weight in April 2008. Further, there is no evidence that the Veteran has suffered incapacitating episodes necessitating bed rest and treatment by a physician and having a total duration of at least four weeks, but less than six weeks, during any 12-month period on appeal. As indicated above, the Veteran has reported fatigue and malaise. He also has complained of gastrointestinal disturbances, nausea, vomiting, and pain in the right upper quadrant of his abdomen. However, he indicated during his VA C&P examination in April 2008 that while these symptoms occurred greater than 7 times during the 12-month period prior to the examination, each episode lasted for only one day. The Veteran did not note any incapacitating episodes as a result of these symptoms during the 12-month period prior to the examination. Even if the Veteran's symptoms of abdominal pain, malaise, and minor weight loss were manifested to a degree sufficient to support an evaluation in excess of 20 percent disabling for hepatitis C, the Veteran still would not be entitled to a higher evaluation. The Veteran was diagnosed with cirrhosis of the liver secondary to hepatitis C in 2008. Sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate Diagnostic Code, but the same signs and symptoms should not be used as the basis for evaluations under both Diagnostic Code 7354 and a Diagnostic Code for sequelae. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 1. Pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7312, the Veteran received a separate evaluation of 30 percent disabling for cirrhosis in a July 2008 RO rating decision. Such a rating is warranted under this regulation when there is evidence of portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. 38 C.F.R. § 4.114, Diagnostic Code 7312. As each of these symptoms have been taken into account in arriving at the Veteran's 30 percent rating for cirrhosis, they cannot be used to form the basis for an evaluation higher than 20 percent disabling for hepatitis C. Consideration has been given regarding whether a staged rating is appropriate. As the Board finds that the Veteran's hepatitis C continuously has been 20 percent disabling, staged ratings are not warranted in the present case. As the preponderance of the evidence is against the claim for an evaluation greater than 20 percent for any portion of the period on appeal, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The above determination denying an initial evaluation in excess of 20 percent disabling for the Veteran's hepatitis C is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. The Board notes that there is no indication that the Veteran's condition reflects so exceptional or so unusual a disability picture as to warrant the assignment of a compensable evaluation on an extraschedular basis. See 38 C.F.R. § 3.321(b). The Veteran has not identified any compelling exceptional or unusual disability factors. The evidence of record also does not suggest any such factors. In this regard, the Board acknowledges that there is a showing that the Veteran's health interferes with his employment. The record indicates that the Veteran was an auto sales manager from June 2006 to September 2007. His employer indicated that it could not employ the Veteran after this period because the position became too mentally and physically demanding for him. The employer also noted that during the 12-month period preceding the Veteran's termination, he missed 36 days of work. During his April 2008 VA C&P examination, the Veteran reported that he was employed full-time. He indicated that he had missed approximately four weeks of work during the last 12-month period because of medical appointments. The examiner noted significant effects on the Veteran's occupational activities as a result of his cirrhosis of the liver secondary to hepatitis C. A review of the Veteran's claims file reveals that in addition to hepatitis C, the Veteran is service connected for cirrhosis of the liver and chronic cholecystitis associated with hepatitis C, major depressive disorder associated with hepatitis C, and right elbow trauma. The Board notes that neither the VA examiner nor the Veteran's employer attributed the Veteran's industrial impairment specifically to his hepatitis C. Indeed, the VA examiner identified cirrhosis as causing significant effects on the Veteran's employment. While indicating that the Veteran could no longer handle the mental and physical rigors of his position as sales manager, the Veteran's employer did not specify which disability or disabilities resulted in his difficulties on the job. Even if the Veteran's industrial impairment could be determined conclusively to result from his hepatitis C, the Board finds that the Schedule for Rating Disabilities contemplates the effects on employment caused by this condition. The manifestations of hepatitis C are addressed by the regular schedular rating criteria as discussed above. Indeed, the Veteran has not presented any evidence indicating that his condition is so unique as to render impractical the application of the regular schedular criteria. The evidence of record also does not reveal that the Veteran's hepatitis C requires frequent periods of hospitalization. In the absence of evidence of any exceptional or unusual disability factors, the criteria for submission for assignment of an extraschedular rating are not met. Remanding this claim to the RO for referral to and assignment of an extraschedular rating by the Under Secretary for Benefits or Director of the Compensation and Pension Service thus is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In addition, the Board notes that if the Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an initial or increased rating is sought, then a total disability rating based on individual unemployability (TDIU) as a result of that disability must be considered as part of the claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an April 2009 RO rating decision, the Veteran was granted TDIU effective February 26, 2008. He has not contended that he was unemployable due to his hepatitis C during any period on appeal prior to this date. There also is no such indication from the record. In fact, during his August 2005 VA C&P examination, the Veteran indicated that he was employed selling cars. A car dealership at which he worked provided employment dates from June 2006 to September 2007. The Veteran himself indicated in his April 2008 VA C&P examination that he was still employed full-time as a sales manager in the field of auto sales. As the Veteran maintained constant employment during the period on appeal, consideration of TDIU prior to February 26, 2008, as a component to the Veteran's claim of entitlement to an initial evaluation in excess of 20 percent disabling for hepatitis C is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation in excess of 20 percent disabling for hepatitis C is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs