Citation Nr: 1101808 Decision Date: 01/14/11 Archive Date: 01/20/11 DOCKET NO. 03-18 418A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased evaluation for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had active service from February 1973 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded this matter for additional development in June 2007. The Board finds a remand warranted here for issuance of a Statement of the Case (SOC). In February 2009, the RO granted service connection for glomerulonephritis, at 60 percent disabling effective May 1, 2008. In a statement dated March 13, 2009, the Veteran expressed disagreement with the assigned effective date and the assigned rating. As the Veteran has not been provided a SOC addressing this issue, remand is warranted. See Manlincon v. West, 12 Vet. App. 238 (1999). This issue 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. FINDINGS OF FACT 1. The evidence of record dated prior to April 20, 2010 does not indicate that the Veteran experienced hepatomegaly or incapacitating episodes due to his service-connected hepatitis C. 2. The Veteran indicated in a statement of record received in June 2010 that he did not seek a disability rating in excess of 40 percent for his service-connected hepatitis C. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for hepatitis C had not been met prior to April 20, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7354 (2010). 2. The criteria for a rating in excess of 40 percent for hepatitis C have not been met since April 20, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7354 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the interest of clarity, the Board will initially discuss whether the claim decided here has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA provided the Veteran with VCAA notification letters dated between August 2002 and June 2007. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. The Veteran was informed of the elements of his claim, and of the evidence necessary to substantiate the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). See also Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). The Veteran was advised of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his claim. VA requested from the Veteran relevant evidence, or information regarding evidence which VA should obtain. Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 73 Fed. Reg. 23353 (the requirement of requesting that the claimant provide any evidence in his/her possession that pertains to the claim was eliminated by the Secretary [effective May 30, 2008] during the course of this appeal, and this change eliminates the fourth element of notice as required under Pelegrini). And, though the Veteran was not provided with complete VCAA notification prior to the adverse rating decision on appeal, following full notification the RO readjudicated his claim in a supplemental statement of the case of record. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). See also Overton v. Nicholson, 20 Vet. App. 427 (2006) (a timing error may be cured by a new VCAA notification letter followed by a readjudication of the claim). Based on this background, the Board finds VA's untimely notice in this matter to be harmless error. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. VA afforded the Veteran the opportunity to appear before one or more hearings to voice his contentions. VA obtained medical records relevant to this appeal. And the Veteran underwent VA medical examinations for his service- connected disorder. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal. Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Merits to the Claim for Increased Rating In May 2000, the Veteran claimed service connection for hepatitis C. The RO denied the Veteran's claim in a February 2002 rating decision that the Veteran appealed to the Board. In June 2007, the Board remanded this matter for additional medical inquiry into the Veteran's claim. After additional medical inquiry was conducted, the RO granted the Veteran's service connection claim for hepatitis C in a May 2008 rating decision. The RO rated the Veteran's disorder as 20 percent disabling, effective the date of his original service connection claim in May 2000. In a November 2008 notice of disagreement, the Veteran argued for a higher increased rating. The RO continued the 20 percent rating in the March 2009 SOC, a decision which the Veteran appealed to the Board. During the pendency of the appeal, in a June 2010 rating decision, the RO increased the Veteran's disability evaluation to 40 percent, effective April 20, 2010. Normally, even where an increase is granted during the appeal period, the appellant is presumed to seek the maximum available rating (100 percent here). AB v. Brown, 6 Vet. App. 35, 38 (1993); see also 38 C.F.R. § 4.114, Diagnostic Code 7354. The Veteran indicated in June 2010, however, that he was satisfied with the assigned 40 percent rating. In a statement of record, he asserted in an underlined sentence that his disagreement was limited to the date assigned for the increase in rating. He argues that a May 30, 2008 effective date should be assigned for the increase from 20 to 40 percent. As such, the Board's inquiry in this matter will be limited to whether a rating of 40 percent had been warranted between May 30, 2008 and April 20, 2010. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim). See also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Diagnostic Code (DC) 7354 38 C.F.R. § 4.114 addresses hepatitis C. Under that code, ratings of 0, 10, 20, 40, 60, and 100 percent may be assigned. As indicated, VA has already found a 40 percent rating warranted here, and the Veteran has indicated that he does not seek a rating in excess of 40 percent. As such, the Board will address the criteria reserved for 20 and 40 percent evaluations under DC 7354. Under DC 7354, hepatitis C warrants a 20 percent rating 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 prior 12- month period. A 40 percent rating is warranted under DC 7354 where there is 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 prior 12-month period. 38 C.F.R. § 4.114, Diagnostic Code 7354. An incapacitating episode is defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 2. The relevant medical evidence of record in this matter consists of VA compensation examination reports dated in March 2008 and April 2010, VA treatment records dated from May 2008, and the Veteran's own statements. This evidence does not document that, prior to April 2010, the symptoms associated with the Veteran's hepatitis C met the criteria for a 40 percent evaluation here. The March 2008 VA report indicated that the Veteran complained of generalized fatigue, and of chronic right abdominal pain. But the report indicated that the Veteran denied anorexia. And the report noted that the Veteran experienced generalized pain due to arthritis rather than due to arthralgias. Moreover, the report indicated that the Veteran's weighed 192 pounds (compared with the 152 pounds he weighed in 1995 according to private treatment records). On examination, the examiner noted no liver enlargement, and no incapacitating episodes. Moreover, the examiner indicated that "the veteran is not receiving any treatment" for the hepatitis C. The VA treatment records dated from May 2008 likewise show that the Veteran complained consistently of fatigue. Moreover, these records indicate that the Veteran's weight began decreasing in as early as March 2009. In fact, September 2009 treatment records indicate that the Veteran's weight had decreased to 145 pounds. Nevertheless, these records do not evidence the criteria reserved for a 40 percent evaluation because, as with the March 2008 VA report, liver enlargement is not noted in the records, and incapacitating episodes are not noted. In the April 2010 VA report, the first evidence that supports the assignment of a 40 percent rating is noted. In that report, the examiner noted (in addition to the Veteran's complaints of fatigue, arthralgias, right-side pain, and weight loss) objective evidence that "the liver is slightly enlarged." This finding, combined with the other symptoms noted, supports the assignment of a 40 percent evaluation. The Board notes that the Veteran stated to the April 2010 examiner that he experienced "incapacitating episodes" that led him to limit himself to bed rest. But the examiner indicated that the Veteran's report was not documented in the claims file. And the examiner indicated that the Veteran had not been ordered to bed rest by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 2. Finally, the Board notes the Veteran's statements of record, arguing that a 40 percent rating has been warranted since May 30, 2008. The Board notes that lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Veteran's complaints of pain, fatigue, malaise, and weight loss are of probative value here. But with regard to the two crucial criteria at issue here - i.e., whether the Veteran had hepatomegaly or incapacitating episodes - the Board has relied on medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). In short, the Veteran is not competent to opine on whether he experiences an internal pathology such as hepatomegaly (which is not an observable symptom). Moreover, the Veteran is not competent to report that he experiences incapacitating episodes. Again, the code specifically defines such as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 2. In sum, the requisite medical evidence is not of record between May 2008 and April 2010 to award a 40 percent rating here. Competent evidence dated during that period does not indicate that the Veteran experienced either hepatomegaly or incapacitating episodes then. It is not until April 20, 2010, that the record indicated that the Veteran had liver enlargement in addition to his complaints of fatigue, pain, weight loss, and malaise. 38 C.F.R. § 4.114, Diagnostic Code 7354. As such, a rating in excess of 20 percent is unwarranted prior to April 20, 2010. Parenthetically, the Board notes that it searched the claims file for evidence of hepatomegaly or incapacitating episodes from the date of the Veteran's original claim for service connection in May 2000. See Fenderson, supra. But no evidence indicates that a physician prescribed the Veteran with bed rest for his hepatitis C. And no evidence prior to April 2010 indicates hepatomegaly. Finally, the Board notes that it has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board has searched the record for evidence that hepatitis C causes marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitates any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. 38 C.F.R. § 3.321(b)(1); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Initially, the Board notes that the Veteran has been assigned a total disability rating based on individual unemployability (TDIU) effective September 2009. He is service-connected for many disorders not at issue here. The Board also notes that the record does not indicate that the Veteran's hepatitis C would prevent him from employment, or causes marked interference with his ability to work. Moreover, the record does not indicate frequent hospitalizations due to the hepatitis C. As such, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In summary, the Board finds a rating in excess of 20 unwarranted prior to April 20, 2010. From then, the Board finds a rating in excess of 40 percent unwarranted. The preponderance of the evidence is against an evaluation in excess of these ratings. The benefit-of-the-doubt rule does not apply therefore to a rating increase here. As such, any such claim for increase must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to a rating in excess of 20 percent, for service- connected hepatitis C, is denied prior to April 20, 2010. 2. Entitlement to a rating in excess of 40 percent, for service- connected hepatitis C, is denied from April 20, 2010. REMAND As indicated in the Introduction, a SOC is due in this matter for the Veteran's claim regarding the assigned effective date for service connection for glomerulonephritis. See Manlincon, supra. Accordingly, the case is REMANDED for the following action: The RO should issue a SOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the Veteran's claim to an earlier effective date and a higher evaluation. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs