Citation Nr: 1508026 Decision Date: 02/24/15 Archive Date: 02/26/15 DOCKET NO. 09-29 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a higher initial disability rating (or evaluation) for the service-connected hepatitis C, in excess of 0 percent from the period from June 6, 2006 to January 31, 2011, and in excess of 10 percent from January 31, 2011. REPRESENTATION Veteran represented by: American Red Cross WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1977 to November 1984, from October 1985 to November 1988, and from December 1989 to October 1996. This appeal comes to the Board of Veterans' Appeals (Board) from December 2006, November 2008, and September 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. A claim for service connection for hepatitis C (claimed as blood work for liver problems) was received in June 2006. The December 2006 rating decision denied service connection for blood work for liver problems. In a June 2007 written statement, the Veteran asked the RO for "reconsideration" of the denial of service connection for a liver disorder. A notice of disagreement must be a written communication from a claimant or the representative expressing dissatisfaction with an adjudicative determination of a Regional Office. The notice of disagreement should be in terms which can be reasonably construed as a desire for review of that determination. It need not be expressed in any special wording. 38 C.F.R. § 19.118 (2014). A notice of disagreement must be filed within one year from the date of mailing the notification of the initial review and determination, otherwise, that determination will become final. 38 C.F.R. § 19.129 (2014). While the RO treated the June 2007 letter from the Veteran as a new claim for service connection, the Board finds it to have been a timely notice of disagreement to the December 2006 rating decision. See Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute a notice of disagreement under the law), rev'd sub nom Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (an effective notice of disagreement need not contain any magic words or phrases). As such, the period on appeal runs from June 6, 2006 (the date VA received the original claim for service) to present. The November 2008 rating decision readjudicated and granted service connection for hepatitis C and assigned a noncompensable (0 percent) disability rating. In May 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge in Washington, DC. A transcript of the hearing is of record. In August 2011, the Board issued a decision that denied an initial compensable disability rating for the service-connected hepatitis for the period prior to January 31, 2011, and granted a 10 percent disability rating from January 31, 2011, creating "staged" initial disability ratings. The August 2011 Board decision was implemented by the September 2011 rating decision. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's August 2011 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the Veterans Law Judge that conducted the May 2011 Board hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, the Veteran requested only to have the prior decision vacated and a new one issued in its place. In April 2014, the Board vacated the August 2011 decision to the extent that it denied a compensable disability rating for the period prior to January 31, 2011 and a disability rating in excess of 10 percent from January 31, 2011. The part of the August 2011 Board decision that granted a higher 10 percent disability rating for hepatitis C for the period from January 31, 2011 was undisturbed by the Board's April 9, 2014 vacate order. On April 21, 2014, the Board remanded the issue on appeal for additional development. Pursuant to the April 2014 remand instructions, the Veteran was contacted and asked to provide information as to all treatment for hepatitis C. Additional private treatment records were obtained and associated with the claims file. Further, the Veteran was afforded a VA examination in May 2014 to assist in determining the current severity of the hepatitis C. As discussed below, the Board finds that the May 2014 VA examination report was thorough and adequate and in compliance with the Board's remand instructions; therefore, the Board finds there has been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). The case was returned to the Board for appellate consideration and is now ready for decision. The Veteran submitted December 2014 private treatment records. While the most recent supplemental statement of the case does not include review of this evidence, in February 2015, the representative submitted a waiver of agency of original jurisdiction (AOJ) consideration of the additional evidence. As such, the Board may consider the evidence in the first instance. The Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. For the initial rating period from June 6, 2006 to January 31, 2011, the Veteran's hepatitis C has more nearly approximated an asymptomatic condition. 2. For the initial rating period from June 6, 2006 to January 31, 2011, the Veteran's hepatitis C has not been manifested by intermittent fatigue, malaise, and anorexia; or, incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain, having a total duration of at least one week during a 12-month period. 3. For the initial rating period from January 31, 2011, the Veteran's hepatitis C has been manifested by intermittent fatigue, right upper quadrant pain, and loss of appetite. 4. For the initial rating period from January 31, 2011, the Veteran's hepatitis C has not been manifested by 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 during a 12-month period. CONCLUSIONS OF LAW 1. For the rating period from June 6, 2006 to January 31, 2011, the criteria for an initial compensable disability rating for hepatitis C have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7354 (2014). 2. For the rating period from January 31, 2011, the criteria for an initial disability rating in excess of 10 percent for hepatitis C have not been met or more nearly approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7354 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2014). 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 and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice was provided to the Veteran in June 2006, prior to the initial adjudication of the claim in December 2006. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability ratings and effective dates. Further, this issue comes before the Board on appeal from the decision which also granted service connection; therefore, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. §5103(a) notice for the service connection claim that was granted. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 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); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, private treatment records, VA examination reports, a copy of the May 2011 Board hearing transcript, and lay statements. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in December 2007 (with an addendedum opinion obtained in November 2008) and May 2014. The Board finds that the VA examination reports are thorough and adequate and provide a sound basis upon which to base a decision with regard to the issue of higher disability ratings for hepatitis C. The VA examiners personally interviewed and examined the Veteran, including eliciting a history, conducted a physical examination, and specifically addressed the symptoms and impairment listed in the relevant criteria in the potentially applicable diagnostic codes. The Veteran testified at a hearing before the Board in May 2011 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs 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. In this case, during the Board hearing, the Veterans Law Judge advised the Veteran as to the issue on appeal. The Veteran's Law Judge specifically asked and the Veteran testified regarding symptoms, limitations, and problems, including fatigue, weight loss, and pain, associated with the hepatitis C. As the Veteran presented evidence of symptoms and functional impairments due to the hepatitis C, and there is additionally medical evidence reflecting the severity of the hepatitis C, there is both lay and medical evidence reflecting on the degree of disability, and there is no overlooked, missing, or outstanding evidence as to this issue. Moreover, neither the Veteran nor the representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the issue based on the current record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Initial Ratings for Hepatitis C Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2014). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2014). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2014). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as in this case, the question for consideration is the propriety of the initial ratings assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered, and maintained, the assigned "staged" ratings of noncompensable for the period from June 6, 2006 to January 31, 2011, and 10 percent ratings from January 31, 2011 for the hepatitis C. The Veteran is in receipt of an initial noncompensable disability rating for the period from June 6, 2006 to January 31, 2011, and a 10 percent disability rating from January 31, 2011 for the service-connected hepatitis C under 38 C.F.R. § 4.114, Diagnostic Code 7354. Under Diagnostic Code 7354, a noncompensable (0 percent) rating is assigned for nonsymptomatic conditions. 38 C.F.R. § 4.114. A 10 percent rating is assigned for 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. Id. A 20 percent rating is assigned for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. A 40 percent rating is assigned for 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. 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; 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 serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: Near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Diagnostic Code 7354 provides the following Note: Note (2): For purposes of evaluating 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. Id. Throughout the course of this appeal, the Veteran has contended that the service-connected hepatitis C has been manifested by more severe symptoms than that contemplated by the noncompensable and 10 percent "staged" disability ratings assigned. In a November 2008 written statement, the Veteran contended that his liver disorder will get worse and asserted that there is no cure or treatment for this disability. In an October 2014 written statement, the Veteran contended that, even though he does not exhibit symptoms or have incapacitating episodes, he currently has hepatitis C that was contracted during active duty. From June 6, 2006 to January 31, 2011 As discussed in detail below, for the period from June 6, 2006 to January 31, 2011, the Board finds that the criteria for a compensable initial disability rating for the service-connected hepatitis C have not been met or more nearly approximated. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from June 6, 2006 to January 31, 2011, the Veteran's hepatitis C has more nearly approximated an asymptomatic condition. VA treatment records and VA examination reports of record, as well as the Veteran's own lay statements, dated throughout this part of the period on appeal, note that the Veteran has a current diagnosis of hepatitis C. April and June 2010 private treatment records note that the Veteran had no gastrointestinal complaints, jaundice, bruising, or bleeding. At the December 2007 VA examination, the Veteran reported that he has been followed by his private physician since leaving service. The VA examiner noted that a liver biopsy in January 2004 showed chronic hepatitis C, moderately active, Grade III, with peri-portal fibrosis. However, on examination, the Veteran had no symptoms at all, had not lost any weight, had not been jaundiced, and had no nausea, vomiting, or diarrhea. Physical examination was completely normal. At the May 2011 Board hearing, the Veteran testified that his symptoms began to worsen in January 2011 and that he went to see his doctor in March 2011. The Veteran testified that prior to January 2011 the symptoms were not as bad or as frequent. The Veteran testified that, prior to January 2011, his symptoms were infrequent, and that January 2011 represents a true worsening of his overall condition. Based on this evidence, the Board finds that, for the initial rating period from June 6, 2006 to January 31, 2011, the criteria for initial compensable disability ratings for the service-connected hepatitis C have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.114. A compensable (10 percent) disability rating under Diagnostic Code 7354 requires 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. The Board finds that intermittent fatigue, malaise, and anorexia are not shown. The evidence of record does not reflect any period of acute signs and symptoms severe enough to require bed rest and treatment by a physician nor does the Veteran assert otherwise. The Veteran's hepatitis C has more closely approximated an asymptomatic condition and, as detailed above, has not been manifested by intermittent fatigue, malaise, and anorexia or incapacitating episodes. See 38 C.F.R. §§ 4.3, 4.7. From January 31, 2011 As discussed in detail below, for the period from January 31, 2011, the Board finds that the criteria for an initial disability rating in excess of 10 percent for the service-connected hepatitis C have not been met or more nearly approximated. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from January 31, 2011, the Veteran's hepatitis C has been manifested by intermittent fatigue, right upper quadrant pain, and loss of appetite. A March 2011 private treatment record notes that the Veteran's liver enzymes were mildly elevated. An April 2013 private treatment record notes that the Veteran has chronic hepatitis C without hepatic coma. At the May 2011 Board hearing, the Veteran testified that his symptoms had worsened in January 2011, and that he went to see his doctor in March 2011. The Veteran reported symptoms of sleep impairment, not eating properly, fatigue when walking, and pain in the upper right quadrant. The Veteran testified that the fatigue can last a day to a week, he has intermittent right upper quadrant pain lasting one to two hours, and he feels occasionally nauseated lasting for a few days and, at these times, he will eat less. The Veteran testified that he weighed around 130 pounds. The Veteran testified that he misses work approximately four days out of the month due to fatigue. At the May 2014 VA examination, the Veteran reported some fatigue with moderate exercise such as walking and occasional right upper quadrant abdominal pain. The VA examination report notes no nausea, vomiting, or weight loss in the previous year and that continuous medication is not required for control of the hepatitis C. The VA examiner noted intermittent fatigue and right upper quadrant pain. The VA examiner opined that the Veteran's service-connected hepatitis C is active but not currently debilitating because the Veteran works full-time, has not missed any specific time from work due to hepatitis C, and has some mild symptoms of fatigue with moderate exertion and occasional right upper quadrant abdominal pain. Based on this evidence, the Board finds that, for the initial rating period from January 31, 2011, the criteria for a disability rating in excess of 10 percent for the service-connected hepatitis C have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.114. A higher (20 percent) disability rating under Diagnostic Code 7354 requires 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. The Board finds that daily fatigue, malaise, and anorexia are not shown. The requirements of dietary restriction or continuous medication are contingent on a showing of the first three symptoms, and do not represent an alternative basis for a 20 percent rating. The Veteran has testified that he experiences fatigue when he walks, and that he feels nauseated from time to time. When they occur, these symptoms can last a few days to a week. There is no assertion that the Veteran's symptoms are present every day. Further, the evidence of record does not reflect any period of acute signs and symptoms severe enough to require bed rest and treatment by a physician nor does the Veteran assert otherwise. The May 2014 VA examination report notes that the Veteran has not had any incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain in the past 12 months. For these reasons, the Board finds that, for the rating period from January 31, 2011, the Veteran's symptoms are more accurately characterized as intermittent, as opposed to daily. The criteria for the 40 percent and 60 percent level also contemplate daily symptoms. The criteria for the 100 percent rating include near-constant debilitating symptoms. To this extent, the rating criteria are progressive, and symptoms of any higher rating are not more nearly approximated than those for the 10 percent rating currently assigned from January 31, 2011. See 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating would have been warranted for the hepatitis C for any part of the rating period. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular disability ratings for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that all the symptomatology and impairment caused by the Veteran's hepatitis C is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's hepatitis C has been manifested by intermittent fatigue, right upper quadrant pain, and loss of appetite as well as an asymptomatic period. The rating criteria specifically provide for ratings based on the presence of fatigue, right upper quadrant pain, and loss of appetite as well as a noncompensable rating when the hepatitis C is asymptomatic (38 C.F.R. § 4.114, Diagnostic Code 7354). In this case, comparing the Veteran's disability level and symptomatology of the hepatitis C to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the hepatitis C, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. At the May 2011 Board hearing, the Veteran testified that he works as a program analyst. The May 2014 VA examination report notes that the Veteran is working full-time. While the Veteran has made statements that he has missed some time from work due to fatigue (see May 2011 Board hearing transcript), the Veteran has not contended that he is unemployed because of his service-connected disabilities, and the other evidence of record does not so suggest; thus, the Board finds that Rice is inapplicable in this case because neither the Veteran nor the evidence suggests unemployability due to the service-connected disabilities. ORDER A higher initial disability rating for hepatitis C, in excess of 0 percent for the period from June 6, 2006, and in excess of 10 percent from January 31, 2011, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs