Citation Nr: 0812018 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-39 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased initial rating for hepatitis C, rated as noncompensable for the period from October 3, 2002, to September 23, 2007, and as 10 percent disabling as of September 24, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from August 1967 to July 1970 and from July 1972 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) from a June 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection and assigned a noncompensable rating for hepatitis C, effective October 3, 2002. An October 2007 rating decision increased the rating for hepatitis C, from 0 to 10 percent disabling, effective September 24, 2007. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. For the period of October 3, 2002, to September 23, 2007, the veteran's hepatitis C was asymptomatic. 2. For the period since September 24, 2007, the veteran's hepatitis C has been manifested by intermittent fatigue, malaise, nausea, anorexia, arthralgia, and right upper quadrant pain. There have been no incapacitating episodes during the period under consideration of more than two weeks duration in a 12-month period. CONCLUSION OF LAW The criteria for a compensable initial rating for hepatitis C have not been met for the period from October 3, 2002, to September 23, 2007. The criteria for an initial rating in excess of 10 percent for hepatitis C have not been met for the period from September 24, 2007, to the present. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code (DC) 7354 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2007); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 7354, which provides criteria for the evaluation of hepatitis C, a 0 percent rating is assigned for hepatitis C that is nonsymptomatic. A 10 percent rating is assigned for 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. A 20 percent rating is assigned for 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. 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. 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. A 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, DC 7354 (2007). 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, DC 7354, Note 2 (2007). 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. 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. Baseline weight means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112 (2007). Post-service medical records dated from August 2002 to January 2007 show that the veteran received intermittent treatment for his diagnosed hepatitis C. A November 2002 VA treatment report noted that he remained asymptomatic for his hepatitis C. The evidence showed that he experienced some nausea, light-headedness, confusion, and diminished appetite as normal reactions to the hepatitis C medication he was taking. The evidence otherwise reflected that the veteran did not have nausea, fatigue, anorexia, or muscle and joint aches. He also consistently had a good appetite. On VA examination in January 2003, the examiner noted that the veteran had positive hepatitis C serology in his treatment records, but he also had normal liver function tests and negative hepatitis A and hepatitis B serology. The veteran's liver was not found to be enlarged or tender. He denied the use of alcohol for more than two months and specifically denied using injectable medication and intravenous drugs, being sexually exposed to males, and being exposed to intravenous drug abusers. He reported having sixteen female sexual partners, of which six were prostitutes in Europe. He stated that he was not certain whether another six Vietnamese sexual partners had been intravenous drug abusers. The examiner found no evidence of blood transfusion in the veteran's file at the time of his right subcostal surgical approach to his atrial septal repair. He diagnosed the veteran with hepatitis C secondary to sexual exposure between 1967 and 1980. On VA examination in September 2007, the veteran complained that he was becoming more tired. The examiner was unable to comment on whether the veteran had incapacitating episodes in the previous 12 months because he was unable to see the doctor due to his incarcerated status. The veteran reported suffering acute episodes of fatigue, epigastric and right upper quadrant pains, nausea, anorexia, and arthralgia. He denied symptoms of change of color of the urine or stool. He complained of pain over the liver region and reported that he once had very acute pain which had not been investigated due to the difficulty inmates had with accessing physicians. The examiner found that none of the veteran's medications by themselves would cause weakness and progressively worsening weakness. Examination revealed a slightly enlarged liver with liver dullness 20 centimeters in the right midclavicular line. The liver was nontender. There was moderate epigastric tenderness and no palpable gallbladder or ascites detected at the time. The diagnosis was genotype 2 hepatitis C. The examiner opined that the veteran's unexplained weakness was most likely due to his active hepatitis C, which had only been partially and incompletely treated. Post-service medical records dated from October 2007 to December 2007 show that the veteran received treatment for right upper quadrant pain. In October 2007 treatment reports, the veteran stated that he experienced pain four times in the previous month and a half and that this pain came and went. He complained that the pain increased after dinner and caused him to be unable to sleep. He denied vomiting but reported some mild nausea that also came and went. The evidence shows that from October 3, 2002, to September 23, 2007, the veteran's hepatitis C most closely approximated the criteria for a 0 percent rating. Treatment records and a January 2003 VA examination demonstrated that although the veteran had positive hepatitis C serology, he was generally asymptomatic. He only experienced some nausea, light- headedness, confusion, and diminished appetite as normal reactions to the medication he was taking at one point. The veteran is thus not entitled to a compensable rating for the period of October 3, 2002, to September 23, 2007. The Board finds that the medical evidence shows that as of September 24, 2007, the veteran's hepatitis C most nearly approximated the criteria for a 10 percent rating. Treatment records and a September 2007 VA examination revealed that the veteran suffered from episodes of fatigue, right upper quadrant pains, nausea, anorexia, and arthralgia that were related to his hepatitis C disease. The evidence reflects that these symptoms were intermittent, with the veteran reporting that they came and went. He reported that he experienced four episodes of periodic right upper quadrant pain in a month and a half. While the Board acknowledges that the veteran has symptoms related to his hepatitis C disease, the evidence does not show that these symptoms occur daily, nor is there evidence of any incapacitating episodes where a physician prescribed bed rest. The veteran is therefore not entitled to a rating in excess of 10 percent for the period since September 24, 2007. In sum, the weight of the credible evidence demonstrates that the veteran's hepatitis C did not warrant a compensable rating for the period of October 3, 2002, to September 23, 2007, and did not warrant a rating in excess of 10 percent disabling since September 24, 2007. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in November 2002; a rating decisions in June 2003; and a statement of the case in September 2004. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the October 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER A compensable initial rating from October 3, 2002, to September 23, 2007, and an initial rating in excess of 10 percent disabling from September 24, 2007, to the present, for hepatitis C are denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs