Citation Nr: 1101167 Decision Date: 01/11/11 Archive Date: 01/20/11 DOCKET NO. 08-02 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, W.S. ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from July 1977 to May 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2009, the Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of the hearing is of record. The issue of whether new and material evidence has been submitted to reopen a claim of service connection for a psychiatric disorder, to include as secondary to service- connected hepatitis C, was raised by the record, to include at the September 2009 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue and it is referred to the AOJ for appropriate action in the first instance. The issue of entitlement to an evaluation in excess of 40 percent for service-connected hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected hepatitis C is manifested by daily fatigue, right upper quadrant pain, malaise, nausea, and slight hepatomegaly; it is not manifested by incapacitating episodes, substantial weight loss, or debilitating symptomatology. CONCLUSION OF LAW The criteria for an initial evaluation of 40 percent, but no more, for service-connected hepatitis C have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7354 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Under 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, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders, 556 U.S. __ (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). However, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the initial evaluation for service-connected hepatitis C, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. VA provided the Veteran with adequate medical examinations in November 2006 and September 2008. Additionally, the Veteran provided testimony at a September 2009 Board hearing. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. 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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. In that regard, the Board further notes that, to the extent there is a need to develop additional evidence in support of the Veteran's initial rating claim beyond the evidence that is required to support a rating higher than the 40 percent that is being granted by this decision, such development is addressed in the remand portion of this decision. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2010). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2010). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that this rule does not apply here because the current appeal is based on the assignment of an initial rating for a disability following the grant of service connection for hepatitis C. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. By a November 2006 rating decision, the RO granted service connection for hepatitis C and assigned a 10 percent evaluation under 38 C.F.R. § 4.114, Diagnostic Code 7354, effective December 29, 2005. The current 10 percent evaluation contemplates 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. Hepatitis C warrants a 20 percent evaluation where there is 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 evaluation contemplates hepatitis C manifested by 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 4 weeks, but less than 6 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 symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 6 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. In a November 2005 private medical record, the diagnosis was moderately active chronic hepatitis. In December 2005 VA medical records, the Veteran reported right upper quadrant pain. A biopsy showed active hepatitis C. The Veteran reported that he was not able to afford his medications. In an April 2006 lay statement, the Veteran reported that he was receiving ribaviran and pegasys treatment. He stated that he tired very easily, got the chills, and was unable to work full days. In November 2006 private medical records, there was minimal enlargement of the liver. The Veteran reported fatigue, generalized malaise, and abdominal discomfort. In an August 2008 letter, a private examiner noted significant inflammation of the liver and fibrosis. In a November 2006 VA liver examination, the Veteran denied incapacitating episodes, abdominal pain, and weight loss. He reported fatigue, but no nausea, vomiting, arthralgia, or right upper quadrant pain. He did not need bed rest and there was no current treatment, to include medications or diet. It was noted that the Veteran received Interferon from December 2005 to June 2006 and incurred side effects such as depression, weight loss, nausea, and vomiting. The examiner noted the presence of liver fibrosis but no malnutrition. In a January 2007 private medical record, the Veteran was non- responsive to pegylated Interferon. He reported vague abdominal discomfort, but stable weight and adequate appetite. In a March 2007 letter, the Veteran's employer stated that the Veteran was a sales representative. He noted that from 2000 to 2004 the Veteran worked 8 to 10 hour days and was a considerable asset to the company. In the past 2 years, however, the employer noted that the Veteran's attendance and work days were greatly affected, and because his was commission-based, his salary had also been directly affected. In a March 2007 letter, a private examiner noted that the Veteran had episodes of pain and tired easily and often. The examiner noted that the Veteran needed to stay home in bed, even though he did not want to, and had great difficulty working. In a February 2007 private medical record, the examiner noted that the Veteran's pain in the right upper quadrant was improved and he had been placed on Interferon in October 2005. In an April 2007 private medical record, there was chronic right upper quadrant pain and fatigue, but no weight loss, nausea, or vomiting. A June 2007 private record noted failed treatment with interferon and ribavirin. The Veteran reported right upper quadrant pain and fatigue. In a November 2007 private record, there was chronic right upper quadrant pain and fatigue. In private medical records from August 2006 through November 2007, the Veteran's weight was noted as approximately 200 to 207 pounds, although a March 2007 record noted 195 pounds. In a June 2008 private record, there was right upper quadrant pain. The Veteran reported nausea that was improved by his medication. A September 2008 VA liver examination was conducted. The Veteran reported no incapacitating episodes, but reported fatigue, nausea, right upper quadrant pain, a weight loss of 30 pounds over 7 months, and malaise. He was working approximately 25 hours per week. Upon examination, there was no malnutrition, no liver medications, and no hepatomegaly. There were abnormal liver function tests and liver-enzyme elevation. In a January 2009 letter, a private examiner noted that the Veteran was in constant pain with daily chronic fatigue, general malaise, and nausea. There had been a reduction in his salary. Currently, the Veteran was taking vitamins to insure optimal health. At the September 2009 Board hearing, the Veteran reported daily fatigue, abdominal pain, malaise, and nausea. He stated that he took a nap every afternoon, from 1 or 2 to 4 or 5, and slept from 8 or 9 every night until 5 am. He stated that that his Zegerid medication helped get him through the day. The Veteran reported that his weight went up and down. He also stated that recently, his private physician found something on his liver, and that he was going to go in for additional testing. He also stated that his condition had worsened since his last VA examination. The Board finds that, upon a review of the evidence of record, a 40 percent initial evaluation is warranted. A 40 percent evaluation contemplates hepatitis C manifested by 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 4 weeks, but less than 6 weeks, during the past 12-month period. The Veteran has consistently denied incapacitating episodes. Throughout the time period, however, the Veteran has reported daily fatigue and malaise. In a November 2006 private medical record, it was note that the Veteran's liver was minimally enlarged (hepatomegaly). Additionally, at the November 2006 VA examination, he denied right upper quadrant pain and weight loss, but in February, April, and November 2007, he reported right upper quadrant pain and nausea. In June 2008, the nausea was improved. At the September 2008 VA examination, there was fatigue, nausea, right upper quadrant pain, malaise, and abdominal pain. Although the Veteran reported weight loss at the examination, his weight was not taken and his 2007 private medical records show that he maintained approximately the same weight. The examiner found no hepatogemaly. Thus the Veteran's reported symptoms include daily fatigue, malaise, right upper quadrant pain, and nausea. Although it is unclear whether there is hepatomegaly, a November 2006 private examiner found there was. Accordingly, the Veteran's symptoms more nearly approximate the criteria for a 40 percent evaluation. 38 C.F.R. § 4.7. A 60 percent evaluation, however, is not warranted as the evidence does not indicate a substantial weight loss. The Veteran is competent to report a 30 pound weight loss but the Board does not find this statement credible, considering that the year before he had maintained a steady weight. Additionally, a 100 percent evaluation is not for assignment because the Veteran's description of his symptoms does not indicate that they are debilitating. Although his employment has suffered and he must take daily naps, he is able to work approximately 25 hours per week and does not suffer from malnutrition. An increased evaluation under other potentially applicable diagnostic codes has been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). But the other diagnostic codes for digestive disorders are inapplicable to the Veteran's hepatitis C. See 38 C.F.R. § 4.114, Diagnostic Codes 7200-7351 (2010). After review of the evidence, a rating in excess of 40 percent is not warranted at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2009); see also Fenderson, 12 Vet. App. at 126. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. A rating in excess of 40 percent is provided for certain manifestations of the service-connected hepatitis C but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's hepatitis C, as the criteria assess his symptoms, to include fatigue, malaise, nausea, right upper quadrant pain, and hepatomegaly. In the absence of any additional factors, this issue need not be referred for consideration of an extraschedular rating. However, as discussed below in the remand portion of this decision, further evidentiary development is required to determine whether or not an initial rating above 40 percent is warranted for the Veteran's service-connected hepatitis C condition. ORDER An initial evaluation of 40 percent, but no more, for hepatitis C is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND As mentioned above, although the Veteran's initial rating claim is being granted in part, a remand also is required in this case to determine if an evaluation in excess of 40 percent or a staged rating upon a new examination is warranted. In particular, a remand is required to obtain private medical records, to provide the Veteran with a current examination, and to obtain AOJ consideration of newly-submitted evidence. VA's duty to assist claimants in obtaining the evidence needed to substantiate a claim includes making reasonable efforts to obtain private medical records. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(1). Here, at the September 2009 Board hearing the Veteran reported that a bump had recently been found on his liver and that he was going to be seeing his private physician, Dr. Vittorio Fiorenza. Accordingly, an attempt must be made to obtain records of this treatment from Dr. Fiorenza for purposes of ascertaining the current status of the Veteran's hepatitis C condition. In addition, VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also 38 C.F.R. § 3.326(a) (2010). The most recent VA liver examination was in September 2008. At the September 2009 Board hearing, the Veteran asserted that the symptoms caused by his hepatitis C have worsened since the time of that examination. Accordingly, on remand, the Agency of Original Jurisdiction (AOJ) must provide the Veteran with a new liver examination. Finally, in May 2009, the Veteran submitted an April 2009 letter from his private physician and a lay statement. These documents were received after issuance of the most recent SSOC and were submitted without a waiver of initial AOJ consideration. Pertinent evidence submitted by the Veteran must be referred to the AOJ for review and preparation of an SSOC unless this procedural right is waived in writing by the Veteran. 38 C.F.R. §§ 19.37, 20.1304 (2010). Accordingly, a remand is required for initial AOJ consideration of this new evidence. Accordingly, this case is REMANDED for the following actions: 1. Contact the appropriate VA Medical Centers and obtain and associate with the claims file all outstanding records of treatment pertaining to the Veteran's hepatitis C from 2005 to the present. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. 2. After obtaining any required releases from the Veteran, obtain records of all private treatment received from Dr. Vittorio Fiorenza from June 2009 to the present. Also obtain the results of testing that was reportedly done for the hepatitis condition at Samaritan Hospital, Albany, New York, in approximately September 2009, to include any biopsy results. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any medical records that pertain to his hepatitis C. Subsequently, and after securing the proper authorizations where necessary, obtain any records that are not already contained in the claims file. 4. In view of the reported impact the Veteran's hepatitis C condition has had on his employment for the past several years, a Social and Industrial Survey should be provided. 5. Following the completion of the above, schedule the Veteran for a comprehensive examination to determine the current severity of his service-connected hepatitis C and provide the appropriate examination worksheet(s). The claims folder must be made available to the examiner for review. All indicated tests and studies, if any, must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must describe all symptomatology due to the Veteran's service-connected hepatitis C. In particular, the examiner must indicate whether the Veteran has "incapacitating episodes" (defined as periods of acute signs and symptoms with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain with symptoms severe enough to require bed rest and treatment by a physician). If so, provide frequency of episodes and total duration of episodes over each of the past 12-month periods starting in December 2005. Additionally, the examiner is specifically requested to comment on the presence and severity (e.g. near-constant, debilitating, daily or intermittent), as appropriate, of fatigue, malaise, anorexia, weakness, weight gain, and weight loss, right upper quadrant pain and hepatomegaly. Finally, the examiner is specifically requested to address the presence and/or absence of weight loss and the presence and/or absence of hepatomegaly, to include undertaking any diagnostic testing that is required to make such a confirmation. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken on remand, the claim must be readjudicated, to include consideration of all documents added to the claims file since the April 2009 SSOC. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. A Veteran has the right to submit additional evidence and argument on a matter or matters 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. 2010). ______________________________________________ RICHARD C. THRASHER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs