Citation Nr: 1010806 Decision Date: 03/23/10 Archive Date: 03/31/10 DOCKET NO. 05-31 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased disability rating for service connected Hepatitis C. ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2004, August 2005, and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT For all periods on appeal, the Veteran Hepatitis C was manifested by fatigue, headaches, arthralgias, poor concentration, depression, nausea, and increasing liver damage, with frequent missed work and a failure to respond to anti-viral treatments. CONCLUSION OF LAW Entitlement to a disability rating of 60 percent, but no greater, for service connected Hepatitis C is granted for all periods on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.115, Diagnostic Code 7354 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking an increased disability rating for his service connected Hepatitis C. Service connection for Hepatitis C was granted in a May 2004 rating decision, and the Veteran was assigned an initial 10 percent disability rating, effective August 2004. The Veteran appealed. In an August 2005 rating decision, the Veteran's disability rating was increased to 20 percent, effective August 2004. In an October 2009 rating decision, the Veteran's disability rating was increased to 40 percent, effective August 2009. For reasons that will become clear below, the Board has cited this issue as "entitlement to an increased disability rating for service connected Hepatitis C". This case will address the evaluation of this problem since 2004. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran's Hepatitis C is rated under Diagnostic Code 7354. Under Diagnostic Code 7354, a 40 percent evaluation is warranted 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 during the past 12-month period, but less than six weeks. A 60 percent evaluation is warranted 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 evaluation is warranted for near- constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 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. The Veteran was provided a VA examination in February 2004, several months prior to the Veteran's separation from service. The Veteran reported symptoms of fatigue, headaches, hot flashes, poor concentration, arthralgias, depression, abdominal pain, nausea, and chemo side effects which occurred constantly. He had no weight loss or hepatomegaly. Blood tests confirmed the presence of the Hepatitis C virus and indicated abnormal liver function. He estimated that he had missed approximately 1 day of work a month due to his Hepatitis C and described incapacitating episodes. The Veteran was afforded a second VA examination in December 2007. No weight gain or enlargement of the liver was noted at that time, but the examiner noted that the Veteran's condition had deteriorated as indicated by a recent biopsy showing that the Veteran's liver disease secondary to his Hepatitis C had worsened from stage 2 liver disease to stage 3 liver disease. The Veteran was again afforded a VA examination in August 2009. At that time, the Veteran complained of worsening symptoms of fatigue, headaches, joint pain, muscle weakness, nausea, and depression. However, his weight was stable, with no evidence of an enlarged liver. He reported that he was currently unemployed and rather inactive, but denied incapacitating episodes. VA treatment records document that four separate courses of anti-viral treatment have failed to cure the Veteran's Hepatitis C and that during the course of this appeal, the Veteran's liver disease has worsened from stage 2 to stage 3 liver disease. They also show that the Veteran was hospitalized in May 2005 for cellulitis in the left hand and left foot. The Veteran has asserted in numerous statements that this was caused secondary to his Hepatitis C, although it is unclear from the Veteran's medical records what the actual etiology of the cellulitis was. The Veteran has also submitted statements from his former supervisor and co-workers who in November 2008 noted the increasing severity of the Veteran's symptoms, as well as his increased absences from work. The Veteran's supervisor, A.M., reported that the Veteran had "requested numerous sick hour leaves" and a co-worker, M.S., described the Veteran's physical decline as "obvious." The Veteran himself has also testified regarding the nature of his symptoms. In his August 2004 Notice of Disagreement, the Veteran reported that he experienced daily fatigue, nausea, and dizziness secondary to his disability. In a December 2008 statement, the Veteran reported that he had to take significant time off from work due to the increasing severity and duration of his fatigue, nausea, headaches, and joint pain caused by his current course of medical treatment. In another statement that appears to have been prepared in May 2009, the Veteran reported daily fatigue, headaches, muscle weakness, joint pain, dry eyes and throat, and insomnia, as well as nausea three to four times a week, weekly depression, and occasional period of confusion or lack of concentration. Having considered all the evidence, including both the objective medical evidence and the subjective testimony of the Veteran and his former colleagues, the Board finds that the Veteran's chronic Hepatitis C disability is most appropriately rated as 60 percent disabling for all periods on appeal. The Veteran's Hepatitis C has been unresponsive to repeated anti-viral treatments, and his health has gradually deteriorated as evidence by both diagnostic testing showing that the Veteran's liver disease has progressed from stage 2 to stage 3 and statements from the Veteran and his former co-workers. The Veteran has consistently and credibly described experiencing symptoms of fatigue, headaches, joint pain, and muscle weakness on a daily basis, as well as frequent nausea and depression. While it is unclear the exact number of days of work the Veteran missed, it is clear that he used significant sick leave due to his disability, particularly in the year preceding his retirement. Overall, the Board finds that Veteran's subjective complaints to be credible. However, the Board finds that a higher 100 percent rating is not warranted. While the Veteran's symptoms are serious, there is no evidence that they could be considered "debilitating." There is no evidence that the Veteran is unable to perform activities of daily living or that he is confined to his bed or residence due to the severity of his symptoms. While the Veteran has problems working, this fact has been considered in the grant of the Veteran's 60 percent evaluation. The Board has also considered whether the Veteran's Hepatitis C disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2008). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability level and symptomatology and do not present so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. In conclusion, the Board finds that a disability rating of 60 percent, but no greater, for the Veteran's service connected Hepatitis C is warranted for all periods on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (the Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection. The veteran must also be informed that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in February 2004, October 2005, and March 2006. These letters informed the Veteran of what evidence was required to substantiate his claim and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, some of these notice letters were not provided to the Veteran prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or a supplemental statement of the case, is sufficient to cure a timing defect). Although the October 2005 and March 2006 notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of supplemental statements of the case issued in November 2008 and October 2009. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Board is also aware of the Court's clarification of VCAA notice required for increased rating claims. See Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). However, although the issue before the Board is whether the Veteran's Hepatitis C disability is properly rated, the appeal arises from a grant of entitlement to service connection, not an increased rating claim. See Fenderson v. West, 12 Vet. App. 119, 125 (1999) (explaining that a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating). VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). It appears that all evidence necessary for a fair adjudication of the claim is of record. The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran was also afforded multiple VA examinations of his disability which were adequate for rating purposes. Significantly, the appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Based on the above, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A disability rating of 60 percent, but no greater, is granted for the Veteran's service connected Hepatitis C from August 2004. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs