Citation Nr: 1423749 Decision Date: 05/27/14 Archive Date: 06/03/14 DOCKET NO. 11-26 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to a compensable initial rating for herpes simplex virus type 2. 2. Entitlement to an initial rating for hepatitis C, in excess of 10 percent prior to March 1, 2012, and in excess of 20 percent thereafter. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran had active service from November 1976 to November 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2012. A transcript of that proceeding has been associated with the claims file. The Board notes that in correspondences dated in August 2012, the Veteran and his representative stated that the Veteran was satisfied with his 20 percent rating and that he did not wish to pursue his appeal with regard to hepatitis C. However, at the September 2012 hearing, neither the Veteran nor his representative acknowledged their prior correspondences withdrawing the issue. To the contrary, the Veteran provided testimony concerning his hepatitis C and his representative requested that the Veteran's claim for an increased rating for hepatitis C be granted. Accordingly, notwithstanding the August 2012 correspondences, the Board finds the Veteran's the claim for entitlement to an increased rating for hepatitis C is still before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability. Id. As will be discussed in greater detail below, during the pendency of the appeal, the matter of unemployability has been raised by the record. The TDIU claim has been recognized as part and parcel of the increased rating appeal and is before the Board. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to July 25, 2012, the Veteran's genital herpes infection was manifested by the need for intermittent systemic therapy for a total duration of less than six weeks during the past 12-month period. 2. Beginning July 25, 2012, the Veteran's genital herpes infection was manifested by the need for systemic therapy for a total duration of six weeks or more, but not constantly, during the past 12-month period. 3. Prior to March 1, 2012, the Veteran's hepatitis C disability not productive of daily fatigue, malaise, and anorexia without weight loss or hepatomegaly, requiring dietary restriction or continuous medication; or productive of incapacitating episodes having a total duration of at least two weeks within the last 12-month period. 4. Beginning March 1, 2012, the Veteran's hepatitis C was not productive of daily fatigue, malaise, and anorexia with minor weight loss or incapacitating episodes having a total duration of at least four weeks within the last 12-month period. CONCLUSIONS OF LAW 1. Prior to July 25, 2012, the criteria for a 10 percent rating, but no higher, for service-connected genital herpes infection have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.27, 4.118, Diagnostic Code 7800-7806, 7820 (2013). 2. Beginning July 25, 2012, the criteria for a 30 percent rating, but no higher, for service-connected genital herpes infection have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.7, 4.118, Diagnostic Code 7800-7806, 7820 (2013). 3. Prior to March 1, 2012, the criteria for a disability rating in excess of 10 percent for service-connected hepatitis C have not been met. 8 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.27, 4.114, Diagnostic Code 7354 (2013). 4. Beginning March 1, 2012, the criteria for a disability rating in excess of 20 percent for service-connected hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The appeal for a higher disability rating for service-connected herpes simplex virus type 2 and hepatitis C arise from a disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional VCAA notice is not required. 38 C.F.R. § 3.159(b)(3) (effective May 30, 2008). VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013) to assist the Veteran. The Veteran's service treatment records, VA treatment records, and lay statements are of record. VA provided the Veteran VA examinations in July 2010 and July 2012. The examination reports reflect that the examiners reviewed the Veteran's claim file, recorded his current complaints, conducted an appropriate examination, and rendered findings pertinent for consideration under the applicable schedular rating criteria. Thus, the Board finds that the VA examinations and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted above, the Veteran was afforded a hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing, the Veteran was assisted by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to identifying whether the Veteran had symptoms meeting the criteria for higher ratings. They also asked questions to draw out the current state of the Veteran's disabilities, such as his treatment history and day-to-day functioning. No pertinent evidence that might have been overlooked and that might substantiate the Veteran's claims for increased ratings has been identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claims, and the Veteran and his representative, through testimony and questioning, demonstrated actual knowledge of the elements necessary to substantiate his claims. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013). Based on the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. The Board will therefore review the merits of the Veteran's claims, de novo. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. Part 4 (2013). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Additionally, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis The Board has thoroughly reviewed all the lay and medical evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as to the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Increased Rating for Genital Herpes The Veteran's genital herpes infection is rated under Diagnostic Code 7899-7820. The Board notes that Diagnostic Code 7899 represents an unlisted disability requiring rating by analogy to one of the disorders rated under 38 C.F.R. § 4.118 (2013). See 38 C.F.R. § 4.27 (2013). The Veteran's genital herpes infection is rated under Diagnostic Code 7820, which directs evaluations to be assigned under the rating schedule for the skin (7800-7806) depending on the predominant disability. See 38 C.F.R. § 4.118 (2013). Diagnostic Code 7806 provides for a noncompensable rating if less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12- month period. A 10 percent rating is warranted if the eczema or dermatitis results in at least 5 percent, but less than 20 percent, of the entire body being affected, or at least 5 percent, but less than 20 percent, of exposed areas being affected; or, if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent evaluation is assigned in cases where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted in cases of more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). At a July 2010 rating examination, the Veteran reported that his genital herpes outbreaks occur about four times per year, when the seasons changed, with his most recent outbreak being last week. He stated that he was previously treated with Acyclovir from the onset of an outbreak until it was gone. However, he reported that his prescription was changed to Valacyclovir after Acyclovir became ineffective. The Veteran reported that during outbreaks he had pain and itching, but no systemic symptoms. With regard to treatment, the examiner noted that the Veteran required systemic treatment with Acyclovir or Valacyclovir, approximately four times per year for a duration of approximately a week each time. The examiner stated that neither drug was a corticosteroid or an immunosuppressive and that the Veteran had no side effects from these medications. Upon physical examination, there was no current outbreak and zero percent of the Veteran's body was currently affected. VA treatment records in January 2010, May 2011, September 2012, and December 2012, noted that although the Veteran had a history of recurrent genital herpes outbreaks on his penis, he did not currently have an outbreak at those treatment visits. An August 2010 VA treatment record noted that the Veteran's genital herpes had been treated with Acyclovir, but his prescription was switched to Valacyclovir in April 2010. It was noted that the Veteran was doing well since his prescription was changed. At a February 2012 VA mental disorders examination, the Veteran reported that he did not have an interest in sex or dating because he had genital herpes. At a September 2012 mental health appointment, the Veteran reported that his genital herpes had negatively affected his life. At a July 25, 2012 VA skin examination, the Veteran reported that he had recurrent herpes outbreaks, which had been treated with oral Acyclovir or oral Valacyclovir. Upon examination, the examiner noted that the Veteran had an outbreak on the shaft of his penis, which was almost resolved. No other lesions were present. The examiner stated that the Veteran's genital herpes had not caused scarring or disfigurement on the head, face, or neck. There were no systemic manifestations associated with the condition. With regard to medications, during the last 12 months, the examiner indicated that the Veteran had been treated with oral Valacyclovir for six or more weeks, but was not on constant or near constant medication. The Veteran's genital herpes infection was noted to affect no exposed body areas and less than 5 percent of his total body area. The examiner stated that there were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran's genital herpes. The examiner indicated that the Veteran's genital herpes did not impact the Veteran's ability to work. VA treatment records in April and May 2013 noted that the Veteran stated that he believed that his herpes outbreaks seemed to cause flares in his back pain. A February 2013 VA treatment record indicated that the Veteran had genital herpes since he was 18 years of age and that he had intermittent breakouts. After a careful review of the Veteran's claims file, the Board finds that for the period prior to July 25, 2012, the Veteran's service-connected genital herpes meets the criteria for a 10 percent rating. The July 2010 examiner indicated that the Veteran's herpes breakouts were treated with systemic therapy, Acyclovir or Valacyclovir, approximately four times per year for approximately a week each time. Although the examiner indicated that neither medication was a corticosteroid or an immunosuppressive drug, the language of Diagnostic Code 7806 applies to "systemic therapy," and Acyclovir and Valacyclovir oral tablets are a systemic rather than a topical therapy. As such, the Board finds that the Veteran meets the criteria for a 10 percent rating based on his treatment with systemic therapy. For the period beginning July 25, 2012, the Board finds that a 30 percent rating, but no higher, is warranted for service-connected genital herpes. The July 2012 VA examination report noted that the Veteran was treated with Valacyclovir, a systemic therapy, for 6 or more weeks. However, a rating in excess of 30 percent is not warranted because the Veteran has not required continuous or near continuous treatment. Additionally, the Veteran's genital herpes infection was noted to affect, at most, no exposed body areas and less than 5 percent of his total body area. Accordingly, he does not meet the criteria for the next higher rating of 60 percent, which is only warranted if more than 40 percent of the Veteran's entire body or more than 40 percent of his exposed areas are affected; or he required constant or near-constant systemic therapy during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). The Board has also considered whether higher disability ratings are warranted under Diagnostic Codes 7800 to 7805 for scars. See 38 C.F.R. § 4.118 (2013). However, the evidence is against a finding that the Veteran's genital herpes infection had caused scarring or disfigurement. The July 2010 VA examination report, which noted and addressed other scars, did not indicate the presence of any scars on the Veteran's penis or any scars otherwise related to genital herpes. Additionally, the July 2012 examination report indicated that the Veteran's genital herpes had not caused scarring or disfigurement of the head, face, or neck. As such, Diagnostic Codes 7800-7806 are not for application. Id. In reaching the above determination, the Board has considered the Veteran's statements as to the nature and severity of his skin disability. The Veteran testified that the virus stays in his system, that the herpes outbreaks on his penis are intermittent, that during outbreaks he had painful urination, and that he had increased outbreaks with intercourse. In a May 2010 correspondence, the Veteran noted that he had been started on a new medication and that his herpes affected his life for the past 33 years. The Veteran is certainly competent to report the symptoms that he experiences. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds that, even considering his statements, the criteria for the next higher rating have not been met or more nearly approximated. Increased Rating for Hepatitis C The Veteran seeks entitlement to an increased initial rating for hepatitis C, which is currently evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354 (2013). Under Diagnostic Code 7354, a compensable rating of 10 percent is warranted when the Veteran has serologic evidence of hepatitis C infection and the following signs and symptoms due to the hepatitis infection: 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. 38 C.F.R. § 4.114, Diagnostic Code 7354 (2013). A 20 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication; or for incapacitating episodes (with symptoms described above) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. A 40 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or for incapacitating episodes (with symptoms described above) 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 warranted when symptoms include 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. Id. A 100 percent rating is assigned for near- constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. 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. 38 C.F.R. § 4.112 (2013). The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. Id. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. Id. Note 1 under Diagnostic Code 7354 states: Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Code 7354 and under a diagnostic code for sequelae. Note 2 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.112, Diagnostic Code 7354 (2013). A January 2010 VA treatment record noted that the Veteran had hepatitis C, chronic active, but at a low level. It was noted that he had previously undergone failed interferon treatment and that his current treatment plan was to watch and monitor his condition. A July 2010 VA examination report noted that the Veteran had chronic hepatitis C, grade 9/18 and fibrotic stage 3/6, and that imagining from 2004 was not suggestive of cirrhosis. It was noted that in 2004 and 2007, the Veteran had two unsuccessful courses of hepatitis C virus therapy. The examiner stated that although the Veteran's liver enzymes remained elevated, he showed no signs of liver decomposition. The examiner indicated that the Veteran's condition had been stable and that he had not required dietary restrictions. It was noted that the Veteran was treated with medication and that he had been treated with interferon, ribavirin, immunosuppressives, and pegylated interferon. The Veteran indicated that side effects of treatment had included moderate fever, chills, fatigue, malaise, headaches, nausea, and diarrhea, muscle pain, impaired concentration, mood change, anemia, hair loss, insomnia, skin rash, and auditory and visual problems. The Veteran was noted to have mild vomiting, and no anorexia, thyroid abnormality, or autoimmune disorders. The examiner also noted that the Veteran had not had any incapacitating episodes during that last 12 months, no evidence of malnutrition, and that the Veteran's hepatitis had no significant effects on his usual occupation or daily activities. An August 2010 VA treatment record indicated that the Veteran had chronic hepatitis C and was doing reasonably well. The Veteran denied unintentional weight loss, headaches, abdominal pain, nausea, and muscle weakness or pain. The treatment record also noted that the Veteran had a liver ultrasound in May 2010, which was noted to be normal except for slightly elevated but stable liver enzymes. A December 2010 treatment record noted that the Veteran's liver ultrasound indicated that his liver was normal in size and there was no evidence of hepatosplenomegaly, cirrhosis, or a liver mass. It was further noted that he would be a good candidate for new therapies and had an excellent chance of being cured when those therapies became available. Treatment records in January 2011 and July 2011 noted that the Veteran wanted to start a new treatment for hepatitis C when it became available. These records also noted that his last ultrasound showed no liver masses or cirrhosis, and that he denied any symptoms such as unintentional weight loss, headaches, abdominal pain, nausea, vomiting, or diarrhea. Treatment records show that the Veteran was started on treatment, ribavirin and pegasys, for his hepatitis C in March 2012, and it was noted that these medications caused flu-like symptoms. An April 2012 treatment record indicated that the Veteran had additional side effects including fatigue, rash on his feet, mild mood changes, dyspepsia, and sore gums. Nonetheless, the record indicated that the Veteran was doing okay. A July 2012 VA examination report noted that the Veteran had been previously treated with old style medication, but had not responded to those regimens. It was noted that the Veteran was currently on continuous medication for his liver condition. Specifically, he had been started on peg-interferon (pegasys), ribavirin, and boceprevir in March 2012. It was noted that although he was still undergoing therapy, his 12-week hepatitis C viral RNA load was currently non-detectable. The examiner noted that the Veteran's weight was stable, he was able to exercise gently, and that his liver was mildly tender to deep palpation. The Veteran reported that his symptoms included daily fatigue, intermittent malaise, and intermittent right upper quadrant pain. The Veteran denied any incapacitating episodes, symptoms attributable to cirrhosis, and liver injuries, but a liver biopsy revealed that he had periportal inflammation, periportal septal fibrosis with mild architectural distortion (stage II/III), and focal lobular necrosis (grade 3). With respect to the functional impact on the Veteran's ability to work, the examiner stated that the Veteran was still too fatigued to do any physical work. The examiner stated that the Veteran might physically be able to do sedentary work, but would have to be careful to shield himself from infections and the normal infections of the world because he had immune-suppression problems associated with his hepatitis C treatment. In a July 2012 correspondence, the Veteran stated that his hepatitis caused stress and anxiety, relationship problems, controlled his sex life, and that treatment caused long-term side effects. A November 2012 VA treatment record noted that the Veteran had completed his medication therapy earlier that month. Addendum treatment notes in February 2013 and May 2013 indicated that the Veteran's sustained virological response was undetectable. After a careful review of the Veteran's claims file, the Board finds that an increased rating is not warranted. For the period prior to March 1, 2012, the Veteran's symptoms were not productive of daily fatigue, malaise, and anorexia, requiring dietary restriction or continuous medication; or productive of incapacitating episodes having a total duration of at least two weeks within the last 12-month period. Throughout the entire appeal period, VA treatment records indicate that the Veteran consistently denied unintentional weight loss, headaches, abdominal pain, nausea, and muscle weakness or pain. While the July 2010 examination report noted that the Veteran was currently treated with medication and listed side effects of treatment, after considering the entire record, the Board finds that it is less likely than not that the Veteran was being treated with medication at that time. The examination report provided a detailed history of the Veteran's previous medications, but did not detail any current medications. Additionally, January 2010 VA treatment records specifically noted that past medications were unsuccessful and that the current treatment plan was to watch and monitor his condition. Furthermore, VA treatment records for this period contain numerous medication reconciliations of all VA and non-VA medications. None of which note any current medication for hepatitis C. Accordingly, the Board finds that the evidence weighs against a finding that the Veteran was treated with continuous medication prior to March 1, 2012. While the Veteran was noted to have moderate fatigue and malaise, in the absence of anorexia and the necessity for either dietary restrictions or continuous medication, or evidence of incapacitating episodes the Board finds that the that Veteran has not met or more closely approximated the criteria for the next higher rating of 20 percent. For the period beginning March 1, 2012, although the Veteran reported symptoms including daily fatigue, intermittent malaise, and intermittent right upper quadrant pain, the July 2012 VA examination report specifically noted that the Veteran had not had any incapacitating episodes in the last 12 months. Additionally, VA treatment records indicate that the Veteran did not have weight loss or hepatomegaly. As such, the evidence is against finding that the Veteran had daily fatigue, malaise, and anorexia, with weight loss or incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the prior 12-month period. Additionally, the Board considered whether a higher rated was warranted under Note 1 of Diagnostic Code 7354. 38 C.F.R. § 4.114 (2013). However, VA treatment records and examination reports indicated that the Veteran did not have cirrhosis or malignancy of the liver. To the contrary, it was specifically noted that there was no evidence of hepatomegaly, cirrhosis, or a liver mass. In reaching the above determination, the Board has considered the Veteran's statements as to the nature and severity of his hepatitis C. The Veteran testified that he had symptoms including fatigue, diarrhea, sleep disturbances, rashes, hemorrhoids, and decreased vision. Although the Veteran is competent to report his symptoms, the Board finds that, even considering his statements, the criteria for the next higher rating have not been more nearly approximated. Extraschedular Consideration The Board also considered whether the Veteran is entitled to referral for extraschedular consideration. Thun v. Peake, 22 Vet App 111 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1) (2013). Here, the applicable rating criteria more than reasonably describe the Veteran's disabilities and symptomatology. The Veteran has not submitted evidence indicating that his disabilities constitute "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2013). A comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's genital herpes or hepatitis C present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2013). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. With regard to the Veteran's genital herpes, symptoms of burning and itching skin with visible lesions during flare-ups, and treatment with systemic therapy of less than continuous or near continuous, are congruent with the disability picture represented by the 10 percent rating assigned herein. See 38 C.F.R. § 4.118, Diagnostic Code 7820 (2013). With regard to his hepatitis C, his symptoms include daily fatigue, intermittent malaise and upper right quadrant pain, and the need for continuous medication during indicated periods. See 38 C.F.R. § 4.114, Diagnostic Code 7354 (2013). Further, the Board observes that a higher schedular rating is available for both disabilities, but the facts indicate that neither the Veteran's genital herpes nor his hepatitis C warrants a higher rating. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are adequate. See Thun, 22 Vet. App. at 115. As the rating criteria reasonably describe the Veteran's disability level and symptomatology, it is not necessary to consider whether his disabilities cause marked interference with employment or periodic hospitalizations. 38 C.F.R. § 3.321(b) (2013). ORDER Prior to July 25, 2012, entitlement to an evaluation of 10 percent, but no higher, for service-connected genital herpes is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning July 25, 2012, entitlement to an evaluation of 30 percent, but no higher, for service-connected genital herpes is granted, subject to the laws and regulations governing the payment of monetary benefits. Prior to March 1, 2012, entitlement to an evaluation in excess of 10 percent for hepatitis C is denied. Beginning March 1, 2012, entitlement to an evaluation in excess of 20 percent for hepatitis C is denied. REMAND As noted above, the Veteran is currently unemployed. At his September 2012 hearing, he testified that he had not worked since 2002 and that with all the medication from his service-connected disabilities there was no way he could work. Additionally, the July 2012 VA examination report noted that the Veteran had been self-employed as a plumber and had to suspend his activity due to side effects of his hepatitis C treatment. The examiner went on to state that the Veteran was still too fatigued to do any physical work and although he might be able to do sedentary work, he would have to be careful to avoid normal infections because he had immune-suppression problems associated with his hepatitis C treatment. Accordingly, the Board finds that a TDIU claim is reasonably raised by the record and is before the Board as part and parcel of the Veteran's claims for increased ratings. A review of the record indicates that a remand for further development is required prior to adjudicating the Veteran's TDIU claim. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his representative VCAA notice as to the issue of entitlement to a TDIU due to service-connected disabilities. 2. Complete all appropriate development related to the Veteran's claim for entitlement to a TDIU, to include providing the Veteran with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and allow him adequate time to complete and return it to the VA. 3. Thereafter, the Veteran should be scheduled for a VA examination to ascertain and evaluate whether his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The examiner is requested to opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's service connected disabilities, alone, considered in combination, preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. When offering the requested opinion, the examiner should not consider the effects of age or any nonservice-connected disabilities. The examiner should report the effects of the Veteran's disabilities on his ability to obtain and maintain substantially gainful employment. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be given for any opinion provided. 4. Thereafter, adjudicate the claim of entitlement to a TDIU, to include with consideration of all evidence of record. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs