Citation Nr: 0812744 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-13 243 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an evaluation in excess of 40 percent disabling for hepatitis C. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from January 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 RO decision, which denied a claim for an evaluation in excess of 40 percent disabling. In March 2008, a Travel Board hearing was held before the undersigned Acting Veterans Law Judge at the Winston-Salem, North Carolina RO. A transcript of that proceeding has been associated with the claims folder. The record reflects that the veteran submitted additional evidence to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. FINDING OF FACT The veteran's hepatitis C is characterized by assertions of nausea, depression, fatigue, minor weight loss, enlargement of the left lobe and the caudate lobe of the liver, and abdominal pain in the upper right quadrant. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent disabling for hepatitis C have not been met. See 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321, 4.114, Diagnostic Code 7354 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. In regards to the veteran's claim of an increased rating, a VCAA letter from April 2005 fully satisfied the duty to notify provisions elements 2, 3, and 4. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187; Pelegrini II. In order to satisfy the first Pelegrini II element for an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). For the following reasons, the Board finds that any defects with regard to the Vazquez-Flores test are non-prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez- Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In April 2005, the RO sent the veteran a VCAA letter, which requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran was questioned about his employment and daily life, in regards to his hepatitis C, during the course of the April 2004, May 2005, and May 2007 examinations performed in association with this claim. The veteran provided statements at these examinations in which he details the impact of his disability on his daily life. The Board finds that the responses provided by the veteran show that he knew that the evidence needed to show that his disability had worsened and what impact that had on his employment and daily life. As the Board finds the veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez-Flores. As to the second element, the Board notes that the veteran is service connected for hepatitis C. As will be discussed below, the veteran's disability is currently rated under 38 C.F.R. 4.71a, Diagnostic Code 7354. Although notification of the specific rating criteria was provided in the February 2006 statement of the case (SOC), and not a specific preadjudicative notice letter, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). As to the third element, the Board notes that this information was provided in a March 2006 letter in which it was noted that a disability rating would be determined by application of the ratings schedule and relevant Diagnostic Codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment and daily life. See Vazquez-Flores; Sanders, supra. The notice also corrected any deficiencies as to the requirements of Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), with respect to the disability rating and effective date elements of a claim. As to the fourth element, the April 2005 letter did provide notice of the types of evidence, both lay and medical, that could be submitted in support of his claim. The Board finds that the third and fourth elements of Vazquez-Flores are satisfied. See id. In light of the foregoing, the Board finds that any notice defect as to the requirements of Vazquez-Flores are nonprejudicial. The Board, therefore, finds that VA has discharged its duty to notify. See Pelegrini II, supra. The Board concludes VA's duty to assist has been satisfied. The veteran's service, VA, and private medical records are in the file. The veteran has at no time referenced outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The veteran was provided a medical examination for his hepatitis C most recently in May 2007. The Board finds this examination report to be thorough and consistent with contemporaneous VA and private treatment records. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service- connected disability since he was last examined. See 38 C.F.R. § 3.327(a) (2007). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Therefore, the examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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, on the claim. 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all 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 preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2007). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2007). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The veteran's hepatitis C has been rated as 40 percent disabling, effective March 7, 2002, under Diagnostic Code 7354. The veteran seeks a higher rating. According to Diagnostic Code 7354, a 0 percent rating is assigned for nonsymptomatic hepatitis C. 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 twelve-month period. 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. 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, Diagnostic Code 7354 (2007). Therefore, in order to increase the rating of the veteran's hepatitis C, the veteran must meet the criteria of at least a 60 percent rating under Diagnostic Code 7354. In April 2004, the veteran underwent a VA examination. It was noted at this time that the veteran's hepatitis C made him feel tired, depressed, in pain, and arthralgias. The veteran was also reported as having abdominal pain in the upper right quadrant thru to the right flank, gastrointestinal disturbances, nausea, and vomiting. The condition did not affect his body weight or cause incapacitation at this time. At a May 2005 VA examination, it was noted that the veteran had been diagnosed with Class IV hepatitis with full cirrhosis. The veteran complained of loss of appetite, feelings of confusion, nausea, constant body pains, fatigability, arthralgia, gastrointestinal disturbances, and vomiting. Upon examination, the veteran was found to have tenderness to palpation in the right upper quadrant. It was also noted that the veteran had lost 22 pounds within a 12- month period. He was previously taking Rebetron, but he stated the drugs made him feel "crazy." The veteran also stated that his condition was not incapacitating. At the May 2007 VA examination, it was noted that the veteran had right side pain, nausea, fatigue, arthralgia, gastrointestinal disturbances, vomiting, loss of appetite, and jaundice. Again, it was noted that the veteran had lost 30 pounds in a 12-month period. However, the examiner went on to state that the veteran exhibited no signs of malnutrition. His symptoms were described as near constant and debilitating. The veteran stated that his liver condition did not cause incapacitation. The veteran also stated that his condition caused 50 episodes of coma or periods of confusion during the last year, as well as severe depression. In addition to the VA examination reports, the claims folder also contains VA Medical Center (VAMC) treatment records. The Board notes that, in November 2005, that the veteran denied any abdominal pain, nausea, vomiting, and anorexia. See VAMC treatment record, November 2005. He did, however, state that he had lost weight. Id. In December 2005, he denied fatigue, malaise, or excessive weight loss. See VAMC treatment record, December 2005. A VAMC treatment record from January 2006 reflects that the left lobe and the caudate lobe of the liver were enlarged. The Board notes that the recent medical evidence of record reflects that the veteran experiences fatigue, depression, enlargement of the liver, and minor weight loss. See VA examination report, May 2007; VAMC treatment record, January 2006. However, the evidence of record does not show that the veteran's hepatitis C has resulted in anorexia with substantial weight loss, 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 twelve- month period. The Board notes that the veteran stated at his March 2008 hearing that he spends about 12 hours per day in bed, but incapacitating episodes of the nature described by the rating criteria are defined as including both symptoms severe enough to require bed rest and treatment by a physician. In addition, to warrant a higher rating, the episodes must be of a duration of six weeks during the past twelve-month period, an such episodes are not demonstrated by the record. In fact, as mentioned above, the veteran specifically stated at the April 2004, May 2005, and May 2007 VA examinations that his liver condition does not cause incapacitation. The Board also notes that, while the veteran testified as to losing 30 pounds over the past year, the claims folder contains no evidence that he has anorexia or malnutrition as a result of his disability, and he reports still weighing in excess of 250 pounds. As noted, the criteria for a 40 percent rating already contemplates some weight loss. Absent additional clinical findings supportive of a higher rating, the Board concludes that the overall manifestations of his disability more closely approximate the criteria for a 40 percent rating. In essence, despite the veteran's assertions that his disability is more severe than his current evaluation reflects, the medical evidence of record establishes that the symptoms and manifestations of his disability do not warrant an increased rating under this diagnostic code. The claims folder contains no evidence indicating that the veteran's hepatitis C has resulted in anorexia with substantial weight loss, or that his symptoms have resulted in incapacitating episodes lasting at least six weeks. Therefore, the Board finds that the veteran is adequately compensated with his current rating. A higher rating is not warranted. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the veteran's hepatitis C has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities; has not necessitated frequent periods of hospitalization; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Although the veteran has asserted that he is unable to work, the medical evidence of record does not suggest a degree of symptomatology more severe than is contemplated by the applicable diagnostic code, and the medical evidence also does not suggest that his disability is so severe as to render him unemployable. Although some impairment is certainly present, it should also be noted the disability rating itself is recognition that his industrial capabilities are significantly impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board is cognizant that the veteran was found to be unable to engage in substantially gainful activity by the Social Security Administration (SSA) in 2003; however, records from that agency reflect that the veteran's Hepatis C was only one of several significant disabilities considered by that agency. The decision of that agency, and the medical records associated with the claims file, do not establish that his Hepatitis C alone is so severe as to result in marked interference so as to render impractical the regular schedule standards. Thus, the Board finds that referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings is not for application. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to an evaluation in excess of 40 percent disabling for hepatitis C is denied. ____________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs