Citation Nr: 1222157 Decision Date: 06/25/12 Archive Date: 07/02/12 DOCKET NO. 04 27 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as secondary to service-connected hepatitis C, status post liver transplant. 2. Entitlement to an initial rating in excess of 40 percent for hepatitis C, status post liver transplant. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from September 1970 to September 1973 and had additional service with the Army Reserves. This case comes to the Board of Veterans' Appeals (Board) on appeal of an October 2002 rating decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for hepatitis C, status post liver transplant and assigned a 40 percent evaluation, effective February 27, 2001. The appeal is also taken from a December 2009 rating decision of the RO that denied service connection for diabetes mellitus. It is noted that the Veteran initially appealed this issue as well as a denial of a total disability by reason of individual unemployability due to service connected disabilities (TDIU). A statement of the case (SOC) was issued for both issues. While the Veteran submitted a statement that was accepted as a substantive appeal of the denial of service connection for diabetes mellitus, he made no mention of the TDIU issue. Hence no substantive appeal has been received by VA and this issue is not properly before the Board. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. § 20.302(c) (2011); Roy v. Brown, 5 Vet. App. 554 (1993). During the pendency of the appeal, the RO proposed and severed service connection for hepatitis C. The severance was upheld by the Board in a January 2006 decision, but in March 2008, the Board's decision was reversed by decision of the United States court of Appeals for Veterans Claims (Court). In January 2010, a travel board hearing was held before the undersigned in Newark, New Jersey. A transcript of the hearing is associated with the Veteran's claims file. In April 2010, the Board remanded the issue of increased rating for hepatitis C for further development of the medical evidence and to obtain a VA examination. The requested development was not fully completed and the case was again remanded in December 2010. The requested development has been completed and the case is returned for appellate consideration. In May 2012, the Veteran submitted additional evidence and indicated that initial RO consideration of that evidence was waived. See 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT 1. No injury, disease, or chronic symptoms of diabetes mellitus were manifested during service. 2. The Veteran did not continuously manifest symptoms of diabetes mellitus in the years after service. 3. Diabetes mellitus was not manifested to a degree of ten percent within one year of service separation. 4. Diabetes mellitus is not caused by any in-service event during service. 5. Diabetes mellitus is not caused by, or permanently worsened by a service-connected disability. 6. Throughout the appeal, the Veteran's hepatitis C, status post liver transplant, has been manifested by daily fatigue and malaise, without evidence of weight loss, nausea, vomiting, anorexia, or arthralgia; incapacitating episodes having a total duration of at least six weeks during the past 12-month period have not been demonstrated in the record. CONCLUSIONS OF LAW 1. Diabetes mellitus was neither incurred in nor aggravated by service, nor may it be presumed to have been incurred therein, and is not caused or aggravated by a service connected disease or disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2011). 2. The criteria for an initial rating in excess of 40 percent for hepatitis C, status post liver transplant, have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.144, Diagnostic Codes (Codes) 7351, 7354 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the issue of service connection for diabetes mellitus, the Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. An August 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. Regarding the issue of initial rating for hepatitis C, status post liver transplant, as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess 19 Vet. App. at 490; 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). A January 2010 SOC provided notice on the "downstream" elements of rating and effective dates and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond or supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records, including records utilized by the Social Security Administration (SSA) in a benefits claim, have been secured. The RO arranged for VA examinations in August 2001, April 2009, November 2009, April 2010, and January 2011. These examinations, taken together, are found to be adequate for rating purposes for the issues decided in this decision. In this regard, it is noted that the examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered adequate opinions. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor his/her representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2011). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as diabetes mellitus, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection for Diabetes Mellitus The Veteran contends that service connection is warranted for diabetes mellitus. His primary contention is that this disability is related to medications used to treat service-connected hepatitis C, status post liver transplant. After review of the record, the Board finds that no injury, disease, or chronic symptoms of diabetes mellitus were manifested during service. In this regard, the Board has fully reviewed the Veteran's STRs and finds no complaint or manifestation of diabetes mellitus. Throughout service, and on examination for separation from active duty, urinalysis was negative for sugar. The Board finds that the Veteran did not continuously manifest symptoms of diabetes mellitus in the years after service. Review of the evidence of record, both lay and medical, shows no complaint or manifestations of diabetes mellitus in the years immediately following active duty. As noted, the Veteran's correspondence indicates his belief that the diabetes mellitus is related to medications that he took following the liver transplant that was the result of his service connected hepatitis. He does not state that he had symptoms of diabetes mellitus in the years following active duty. On examination by VA in April 2009, it was reported that the Veteran had been diagnosed as having diabetes approximately three years earlier and was now on oral medication for this disability. A November 2009 statement from the Veteran's private doctor dates the onset of diabetes to approximately 2004. Thus, the record shows that diabetes mellitus was demonstrated in the record in approximately 2004 at earliest. As such, the Board further finds that diabetes mellitus was not manifested to a degree of ten percent within one year of service separation. The Board finds that diabetes mellitus is not caused by any in-service event during service. The Board has reviewed the lay or medical evidence in the record and can find no basis to determine that an in-service event resulted in diabetes mellitus. Moreover, as noted, the Veteran does not contend a direct relationship, but states that secondary service connection for the disability is warranted. The Board finds that diabetes mellitus is not caused by, or increased in severity beyond the natural progress of the disease by a service-connected disability. In this regard, it is noted that in support of the Veteran's contention an October 2009 statement was received from his private doctor. At that time, the treating doctor stated that the Veteran has had diabetes induced by steroids he needed to take as a direct result of a liver transplant. Treatment records dated in November 2009 include a reference to diabetes mellitus that had been diagnosed in 2004, without known retinopathy, nephropathy or neuropathy. On examination by VA in April 2009, it was reported that the Veteran had been diagnosed as having diabetes approximately three years earlier and was now on oral medication for this disability. On examination in November 2009, it was reported that the Veteran had been diagnosed as having diabetes mellitus two years earlier, but had elevated glucose levels since his liver transplant in December 1999 when he had been placed on prednisone medication. He had not been taking prednisone medication since 2001. He had been on oral medication for diabetes mellitus and had recently been placed on insulin therapy. Regarding the question as to whether or not the Veteran's diabetes was secondary to hepatitis, C, the examiner stated that diabetes is not secondary to hepatitis C. It was further noted that the Veteran had been on prednisone therapy, which may increase glucose levels. This may have contributed to the Veteran having had elevated glucose levels while he was on prednisone therapy, but, as the Veteran was no longer on this therapy, it was less likely than not that the diabetes mellitus was related to hepatitis C at this time. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In this case, the October 2009 statement from the Veteran's doctor, that the Veteran's diabetes mellitus was induced by steroids taken for treatment following the Veteran's liver transplant is not found to be as persuasive as the November 2009 statement from the VA physician. In this regard, it is noted that the private physician gave no basis for this opinion, but submitted a bare statement only. Moreover, there is no indication that the opinion is based upon a complete review of the Veteran's past medical records. By contrast, the VA physician gave specific reasoning for the opinion. The examiner conceded that steroid medication could cause a temporary increase in blood glucose levels, but that this would have subsided after the Veteran ceased taking the medication. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). It was noted that the Veteran had stopped taking steroids in 2001 and that the earliest that the Veteran's diabetes mellitus has been documents from is 2004. Thus, the evidence of record lends support to the opinion of the VA examiner, essentially that the steroids temporarily increased the Veteran's blood sugar, which resolved after he stopped the medication. The Board finds that the examiner's opinion with supported rationale sufficiently addresses the questions of causation and aggravation and further medical opinion is not necessary. As such, the Board finds that the preponderance of the evidence fails to show that the Veteran's diabetes mellitus was caused or aggravated by the medications utilized to treat him following his liver transplant. Rating Hepatitis C, Status Post Liver Transplant As noted service connection was granted for hepatitis C, status post liver transplant by the RO in an October 2002 rating decision. The initial rating of 40 percent on the basis of Codes 7351 and 7354 was appealed by the Veteran. After severance and reinstatement of service connection, the appeal of this initial rating remains before the Board. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2011). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2011). In this case, the Board has considered the entire period of initial rating claim from February 2001 to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Diagnostic Code 7351 provides ratings following liver transplant. For an indefinite period from the date of hospital admission for transplant surgery a 100 percent rating will be assigned. One year following discharge from the hospital, an appropriate disability rating shall be determined by mandatory VA examination. The minimum rating shall be 30 percent. Diagnostic Code 7354 provides ratings for signs and symptoms due to hepatitis C infection (non-A and non-B hepatitis). All ratings require serologic evidence of hepatitis C infection. Hepatitis C that is nonsymptomatic is rated noncompensably (0 percent) disabling. 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, is rated 10 percent disabling. 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, is rated 20 percent disabling. 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, is rated 40 percent disabling. 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, is rated 60 percent disabling. Hepatitis C with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), is rated 100 percent disabling. 38 C.F.R. § 4.114. Note (1) to Diagnostic Code 7354 provides that sequelae, such as cirrhosis or malignancy of the liver, is to be rated under an appropriate diagnostic code, but not to use the same signs and symptoms as the basis for a rating under Diagnostic Code 7354 and under a diagnostic code for sequelae. (See 38 C.F.R. § 4.14). Note (2) provides that, for purposes of rating conditions under Diagnostic Code 7354, ``incapacitating episode'' means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114. For purposes of evaluating conditions in § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. The record shows that the Veteran underwent a liver transplant in December 1999. The Veteran submitted his claim for benefits in February 2001. On examination by VA in August 2001 the Veteran's history of liver transplant in 1999 was reviewed. He was on medical management, taking the medications prednisone, Prograf, Bactrim, furosemide, spironolactone, hydroxyzine, proteomics and carafe. He complained of generalized itching, fatigue, and tiredness. On examination, the Veteran stood 5 foot 11 inches and he weighed 187 pounds. He was well built and nourished. There was no icterus and no flapping tremors. There were several surgical scars noted. Tenderness was noted in the right upper quadrant. There were no ascites, no signs of portal hypertension, and questionable splenomegaly. The diagnosis was status post exposure to hepatitis C, with chronic active hepatitis and liver failure, status post liver transplant, on anti-reaction medications, with residuals as mentioned. Records of private treatment include a report of a February 2002 MRI study that showed a small amount of ascites and moderate right sided pleural effusion. In the delayed images, there was some enhancement of the hepatic capsule of indeterminate nature. There was no evidence for right peritoneal lymphadenopathy or abnormal fluid collection. The impression was that, when compared to the reports of the previous examination, the lesions in the liver appeared essentially unchanged. There were no new parenchymal lesions identified. A February 2004 CT scan study showed splenomegaly and ascites present presumably secondary to cirrhosis. An MRI study in June 205 showed hepatic cirrhosis, with associated portal hypertension. There was no evidence of hepatocellular carcinoma. An ultrasound study dated in July 2007 showed what appeared to be appropriate flow within the portal venous system as well as visualized portions of the hepatic veins, splenomegaly, and no evidence for intraheptic biliary ductal dilatation. A September 2009 CT scan study showed fatty liver, splenomegaly, trace amounts of ascites, and nonobstruction small right renal calculus. On examination by VA in April 2009, the Veteran complained of tiredness and fatigue. He had no nausea, vomiting, or hematemesis. He took the medication Prograf, which was described as an anti-rejection medication. He complained of epigastric discomfort, which he was told was hyperacidity. He took Prevacid for this. On examination, he stood 5 foot 11 inches and weighed 226 pounds. There were no ascites, but hepatomegaly was present. Blood testing showed a high hepatitis C RNA load. The diagnosis was chronic active hepatitis C, status post liver transplant, with recurrence of the condition, with high viral load. An examination was conducted by VA in April 2010, at that time, physical examination showed that the Veteran was well built and well nourished. He was in no acute distress. He was 5 feet 11 inches tall and weighed 230 pounds. There were no signs of major ascites noted. The examiner noted that he had daily tiredness, fatigue, loss of appetite and stated that he needed rest on and off. He had mild portal hypertension with esophageal varices, which were secondary to chronic hepatitis C. He had hematemesis on and off, at least once in two months. He did not need total bed rest at present and his activities of daily living were not affected. An examination was conducted by VA in January 2011. At that time, the Veteran's history of liver transplant was noted and it was reported that he was taking Prograf for immunosuppression. He was no longer on steroid treatment. His complaints included fatigue, which occurred on a daily basis; and crampy abdominal pain in the right upper quadrant. He described a history of chronic abdominal swelling and had a history of ascites. He last had a paracentesis procedure performed in 2007, with approximately three liters of ascetic fluid removed. He also had a history of esophageal varices, stating that he had a history of esophageal bleed once per year. He had not had a hospitalization over the past 12 months for this condition, but had one episode three months ago that did not require hospitalization or emergency room visit. He denied any history over the past 12 months for hepatic encephalopathy; but described having fatigue on a daily basis. He stated that he averaged one to two episodes of incapacitation per month. He denied weight loss or change in bowel movements. Examination showed the abdomen to be soft, distended, with mild right upper quadrant tenderness to deep palpation. He had normoactive bowel sounds. No masses were palpated on deep palpation. The extremities were without clubbing, cyanosis or edema. The diagnosis was chronic hepatitis C, as described, with residuals. There were trace ascites on CT scan, but no hepatitis encephalopathy. There was a history of variceal bleed, but not at this time. In May 2012, VA received a statement from the Veteran's private treating physician. (A waiver of consideration of additional evidence by the RO was also received by VA in May 2012.) After reviewing the Veteran's clinical background, the Veteran's complaints were reported as left upper quadrant pain and itching, but the Veteran stated that he was doing well today. No significant weight gain had been noted since the last visit and no other constitutional signs or symptoms were reported. The Veteran reported that he had documented varices and was on B blockade as a result, but review was otherwise normal. Examination of the abdomen showed mild obesity, early caput venous changes and mild splenomegaly. The pertinent impressions were status post liver transplant in December 1999, good allograft function, despite morphologic changes and early recurrent HCV; allograft rejection that is clinically stable; and left upper quadrant pain that is likely related to ongoing splenic enlargement related to portal hypertension. The Board has reviewed the entire evidence of record since the effective date of service connection in February 2001. The Board finds that throughout this time the Veteran's hepatitis C, status post liver transplant has manifested primarily by daily fatigue, right upper quadrant pain, and malaise. There has been no evidence of weight loss, chronic nausea, vomiting, anorexia, or arthralgia. Although the Veteran did report having incapacitating episodes on examination in January 2011, he has not described incapacitating episodes having a total duration of at least six weeks during the past 12-month period and episodes of this magnitude have not been demonstrated in the record. Rather, the Veteran is shown to be stable on immunosuppressant mediation. As the criteria for a rating in excess of 40 percent have not been demonstrated in the record, an initial increased rating is not found to be warranted. With respect to the Veteran's claim for an increased rating, the Board has his lay statements that his disability is worse than currently evaluated. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's hepatitis C disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for increased rating for hepatitis C, status post liver transplant, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. (CONTINUED ON NEXT PAGE) Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's hepatitis C, status post liver transplant, is shown to cause fatigue, without significant weight loss, which is incorporated and specifically contemplated in the schedular rating criteria. For this reason, the Board finds that the assigned schedular rating is adequate to rate the Veteran's hepatitis, status post liver transplant, and no referral for an extraschedular rating is required. Finally, while the Veteran is not employed, and receives SSA Disability Benefits, as noted, TDIU was denied by an unappealed December 2009 rating decision. Therefore, the matter of entitlement to a TDIU rating is not before the Board. ORDER Service connection for diabetes mellitus is denied. An initial rating in excess of 40 percent for hepatitis C, status post liver transplant, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs