Citation Nr: 1127067 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 06-18 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to an initial evaluation in excess of 10 percent for granulomatous hepatitis, with hepatosplenomegaly. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Pflugner INTRODUCTION The Veteran served on active military service from September 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office located in St. Petersburg, Florida (RO). FINDING OF FACT Throughout the appeal the Veteran's granulomatous hepatitis, with hepatosplenomegaly, is manifest by daily fatigue; daily right upper quadrant pain; daily malaise; daily nausea; daily anorexia; intermittent vomiting; lethargy; weakness; hepatomegaly; and cirrhosis; substantial weight loss or other indication of malnutrition, incapacitating episodes or near constant debilitating symptoms are not shown. CONCLUSION OF LAW The criteria for a 40 percent rating, but not more, for granulomatous hepatitis, with hepatosplenomegaly, have been met throughout the appeal. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7312, 7399-7345 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the veteran 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 veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). The Veteran's claim of entitlement to an increased evaluation for granulomatous hepatitis, with hepatosplenomegaly, arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In February 2009, in order to satisfy VA's duty to assist, the Board remanded the Veteran's increased rating claim for further development. Specifically, the Board directed the RO to attempt to obtain VA treatment records from a VA Medical Center in Tampa, Florida, dated in and after January 2007. The Board also directed the RO to obtain information from the Veteran concerning his 2004 cholecystectomy. The Board then directed the RO to request that the Veteran submit a completed VA Form 21-4142 to enable the RO to attempt to obtain relevant records from the medical facility that performed the 2004 cholecystectomy. The RO obtained VA treatment records from the VA Medical Center in Tampa, Florida, dated from September 2007 to February 2008. The RO also obtained records associated with the Veteran's 2004 cholecystectomy. Additionally, VA's duty to assist has been satisfied because the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Pursuant to the Veteran's claims of entitlement to service connection for granulomatous hepatitis, with hepatosplenomegaly, he underwent a VA examination in June 2005. Therein, the examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the Veteran's granulomatous hepatitis, with hepatosplenomegaly. Id. In assigning the initial 10 percent rating to the Veteran's service-connected granulomatous hepatitis, with hepatosplenomegaly, the RO relied upon the findings from the June 2005 VA examination. The Veteran appealed the July 2005 rating decision by the RO, seeking a higher initial evaluation. During the pendency of this appeal, the Veteran asserted that his granulomatous hepatitis, with hepatosplenomegaly, increased in severity since the June 2005 VA examination. Consequently, in February 2009, the Board remanded the claim in order to afford the Veteran a VA examination to determine the current severity of his service-connected granulomatous hepatitis, with hepatosplenomegaly. The September 2009 VA examination thoroughly reviewed the Veteran's claims file and performed a comprehensive physical examination, which allowed for a fully-informed evaluation of the claimed disability. Id. Based on a longitudinal review of the Veteran's claims file, the Board finds that the RO substantially complied with the directives of the February 2009 remand. As such, an additional remand for curative actions is not warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. 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 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Historically, the Veteran served on active duty from September 1965 to September 1969. In January 2005, the Veteran submitted a claim of entitlement to service connection for granulomatous hepatitis, with hepatosplenomegaly, to include as due to inservice exposure to carbon tetrachloride. In July 2005, the Veteran's claim was granted and a 10 percent rating was assigned thereto, effective January 31, 2005. 38 C.F.R. § 3.400 (2010). The Veteran perfected an appeal of the July 2005 rating decision, seeking a higher initial evaluation. In February 2009, the Board remanded the Veteran's claims for further development and readjudication. After the RO accomplished the directed development, the Veteran's claim was denied in a November 2009 supplemental statement of the case. His claim has been remitted to the Board for further appellate review. A. Schedular Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2010). The Rating 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). The current appeal is based on the assignment of an initial disability rating following the initial award of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Accordingly, evidence contemporaneous with the claim and the rating decision that granted service connection 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." Id. 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. Id. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21 (2010). Therefore, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran's granulomatous hepatitis, with hepatosplenomegaly, is evaluated under the hyphenated Diagnostic Codes 7399-7345, concerning the evaluation of chronic liver diseases. 38 C.F.R. § 4.114. Hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27 (2010). The first two digits of the first diagnostic code indicate the most closely related body part followed by a "99." Id. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). The diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Pursuant to 38 C.F.R. § 4.114, ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warranted such elevation. According to Diagnostic Code 7345, a 100 percent rating requires 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 7345. A 60 percent rating 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 twelve- month period, but not occurring constantly. Id. A 40 percent rating 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, but less than six weeks, during the past 12-month period. A 20 percent rating requires 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. Note (1) under Diagnostic Code 7345 states that VA is required to evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but must not use the same signs and symptoms as the basis for evaluation under Diagnostic Code 7345 and under a diagnostic code for any sequelae. See 38 C.F.R. § 4.14 (2010). Note (2) under Diagnostic Code 7345 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 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; and 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. 38 C.F.R. § 4.112 (2010). A January 2004 ultrasound, primarily intended to examine the Veteran's gall bladder, included a "limited" examination of his liver, which was considered "unremarkable." According to a March 2004 operative report, the Veteran underwent an open gastric bypass, a bilateral rib block, and an open cholecystectomy. The report made no reference to abnormal liver symptoms. In July 2004, the Veteran underwent an ultrasound of his abdomen, which resulted in an impression of mild splenomegaly and "borderline" enlarged liver. In October 2004, the Veteran complained of epigastric pain "with fullness." A computed tomography scan of the Veteran's abdomen was compared to a January 2002 scan. Upon comparison, the October 2004 scan revealed a "moderately" enlarged liver and that the gall bladder was surgically absent. The impression was hepatosplenomegaly and status post cholecystectomy. In December 2004, a computed-tomography-guided liver biopsy was performed. After a microscopic examination of the biopsied tissue, the diagnosis was granulomatous hepatitis with cirrhosis. In January 2005, A.K.S., M.D., wrote a letter in support of the Veteran's claim wherein the doctor rendered a diagnosis of granulomatous hepatitis with hepatosplenomegaly. Dr. A.K.S. stated that this diagnosis was supported by a computed tomography scan of the Veteran's abdomen and a needle biopsy of the liver. Dr. A.K.S. also stated that laboratory testing was negative for Hepatitis A, B, C, alpha 1 antitrypsin, Wilson's Disease, biliary cirrhosis, and cancer. In June 2005, the Veteran underwent a VA examination to ascertain the presence of granulomatous hepatitis, with hepatosplenomegaly, and, if present, whether it was related to the Veteran's active duty service, to include as due to exposure to carbon tetrachloride. After reviewing the Veteran's relevant medical history, the examiner administered a physical examination. This examination revealed positive bowel signs; a soft, non-tender, and non-distended abdomen; an enlarged liver 3 centimeters below the costal margin; no evidence of jaundice or palmar erythema; and no other evidence of cirrhosis. Following laboratory testing, the assessment was granulomatous hepatitis. The examiner stated that the Veteran's only symptoms were hepatomegaly, fatigue, and malaise; the examiner did not address the frequency of these symptoms. In October 2005, Dr. A.K.S. submitted a letter in support of the Veteran's claim. Therein, the doctor reiterated much of the January 2005 letter, but also stated that the Veteran "regularly" experienced depression, fatigue, and an "upset" stomach, presumably as a result of his granulomatous hepatitis, with hepatosplenomegaly. In May 2006, the Veteran asserted that he had been prescribed medication that he had taken twice per day for the previous 2 years. He also asserted that he experienced consistent pain for "years." In a March 2007 letter, Dr. A.K.S. wrote that the Veteran experienced "daily fatigue, lethargy, nausea, right side abdominal discomfort, and an inability to pursue any physical activity" as a result of his granulomatous hepatitis with cirrhosis. According to a September 2007 VA treatment record, the Veteran complained of fatigue "all of the time" for the past 4 to 5 years. The assessment was chronic fatigue "probably secondary to hepatitis, depression." An October 2007 VA gastroenterology consultation note demonstrated that the Veteran complained of a several year history of fatigue, worse over the past several months. There was no history of jaundice, hepatic decompression, elevated liver function tests, or heavy alcohol abuse, and no family history of liver disease. After a physical examination, the impression was a history of granulomatous hepatitis based on a 2004 biopsy, and chronic fatigue that was "likely unrelated." In November 2007, I.C., M.D. wrote a letter in support of the Veteran's claim. The doctor stated that the Veteran had been diagnosed with chronic granulomatous hepatitis with cirrhosis, which had been confirmed by a December 2004 biopsy. As a result of this diagnosis, Dr. I.C. stated that the Veteran experienced chronic fatigue on a daily basis. Dr. I.C. also stated that the Veteran's condition had remained stable for years, but with no improvement. According to a November 2007 VA gastroenterology consultation note, the Veteran complained of chronic fatigue. The Veteran inquired about the possibility of an etiological relationship between carbon tetrachloride exposure and cirrhosis. Ultimately, the assessment was that the cause of the Veteran's cirrhosis could not be determined because "carbon tetrachloride exposure is a rare cause of cirrhosis," and there were other considerations, such as a metabolic syndrome. In a letter dated in May 2008, the Veteran's daughter stated that the Veteran was "constantly" fatigued and would sleep 2 or 3 times during the day, sometimes for hours at a time. She also discussed the Veteran's inability to eat, becoming sick because he had eaten, and vomiting. She also described how the Veteran progressively stopped socializing, participating in family function, engaging in hobbies, and exercising because of his symptoms; however, the Veteran established a small garden that he tended to, albeit with the assistance of his spouse and granddaughter. She also stated that she noticed a "yellowing" of the Veteran's eyes. In another letter dated in May 2008, L.M., a licensed massage therapist, stated that the Veteran made her aware of his ongoing condition. Specifically, L.M. referred to chronic fatigue and upper right quadrant pain, which she concluded "greatly hinder" the Veteran's daily activities. L.M. opined that the Veteran spent 80 percent of his day "dealing" with the effect of his symptoms. In November 2008, the Veteran testified at a Board hearing that he experienced fatigue on a daily basis, nausea, vomiting. He also testified that the he had been taking a prescribed medication since 2004 for an enlarged liver, and that he was on dietary restrictions, namely a fiber diet. The Veteran further testified that he underwent "some" weight loss in 2004, but it was not clear from his testimony whether this was due to his granulomatous hepatitis or the cholecystectomy. Regardless, the Veteran stated that his weight had been "fairly level" for the past 2 years. In fact, the Veteran testified that he had gained about 20 pounds during that time period. He also stated that he "did [not] want to drive," but did so in order to participate in the Board hearing, suggesting that he drove himself to the hearing site. In November 2008, Dr. A.K.S. submitted letter wherein he noted that the Veteran had been a patient of his since April 1991. Dr. A.K.S. stated that the Veteran continued to experience "daily fatigue, lethargy, daytime somnolence, nausea, chronic abdominal pain, and the inability to participate in physical activity." The doctor stated that the Veteran's condition had deteriorated since March 2007. In December 2008, the Veteran submitted a statement wherein he claimed that he experienced fatigue, pain, nausea, upset stomach, weakness, an enlarged liver, and fell asleep "constantly." The Veteran also asserted that he then experienced these symptoms 50 weeks per year. He also stated that he was on a "constant" diet and that he was "sleeping [his] life away." In September 2009, the Veteran underwent a VA examination to ascertain the severity of his granulomatous hepatitis, with hepatosplenomegaly, and cirrhosis. The Veteran reported that his symptoms had progressively worsened since his last VA examination, the most significant of which was chronic fatigue. Despite his increased symptoms, the Veteran denied any hospital admissions. The Veteran also denied any incapacitating episodes during the previous 12 months. The only treatment the Veteran received was a prescribed medication that he had taken twice daily since 2004. Significantly, the Veteran denied that he was on a restricted diet at the time of the examination. The examiner reviewed the March 2004 operative report, noting that no abnormality of the liver was then acknowledged. The Veteran endorsed near-constant fatigue; near constant malaise; daily nausea; intermittent vomiting; daily anorexia; and near-constant right upper quadrant abdominal pain. The Veteran denied any weight loss. With respect to his cirrhosis, the symptoms included weakness, malaise, anorexia, abdominal pain, jaundice, fatigue, and nausea. The examiner found no evidence supporting a history of portal hypertension. The examiner reviewed the Veteran's claims file and noted that the Veteran also had diagnoses of diabetes mellitus, type II; obesity; iron deficiency anemia; recurrent nephrolithiasis; daytime hypersomnolence; and history of prostate cancer. The examiner concluded that none of these disorders was related to the Veteran's granulomatous hepatitis, with hepatosplenomegaly. The examiner then reviewed the Veteran's treatment records and performed a physical examination. The examiner noted that the Veteran had gained weight, amounting to a less than 10 percent increase when compared to his baseline. An ultrasound of the Veteran's abdomen resulted in an impression of "diffuse fatty infiltration of the liver/hepatocellular disease," and hepatomegaly. Ultimately, the diagnosis was granulomatous hepatitis, with hepatosplenomegaly and cirrhosis due to carbon tetrachloride. The examiner then opined that there was "no evidence of any progression of this disease since [the Veteran's] last exam[ination]." Preliminarily, the evidence of record included diagnoses of non-service-connected disorders, including diabetes mellitus, type II; obesity; iron deficiency anemia; recurrent nephrolithiasis; daytime hypersomnolence; and history of prostate cancer. In September 2007, the Veteran's chronic fatigue was determined to be "probably" secondary to his granulomatous hepatitis, with hepatosplenomegaly. In contrast, in October 2007, the Veteran's chronic fatigue was considered "unlikely" related to his granulomatous hepatitis, with hepatosplenomegaly. Moreover, in November 2008, Dr. A.K.S. opined that the Veteran's condition had deteriorated since March 2007, but did not distinguish between the Veteran's service-connected and non-service-connected symptoms. Further, although the September 2009 VA examiner opined that the Veteran's granulomatous hepatitis, with hepatosplenomegaly, underwent no progression since the June 2005 VA examination, the examiner did not specifically address whether the Veteran's reported symptoms were manifestations of his service-connected granulomatous hepatitis, with hepatosplenomegaly, or of his non-service-connected disorders. The Board is unable to reconcile the evidence of record as to the disability picture presented by the Veteran's granulomatous hepatitis, with hepatosplenomegaly. Consequently, the Board will consider all of the Veteran's reported symptoms as manifestations of his service-connected granulomatous hepatitis, with hepatosplenomegaly. Mitleider v. Brown, 11 Vet App 181 (1998) (standing for the proposition that where non-service symptoms cannot be separated from service connected symptoms, all of the symptoms are treated as service connected). The evidence of record demonstrates that the Veteran's granulomatous hepatitis, with hepatosplenomegaly, is manifested by daily fatigue; daily right upper quadrant pain; daily malaise; daily nausea; daily anorexia; intermittent vomiting; lethargy; weakness; hepatomegaly; and cirrhosis. See Buchanan, 451 F.3d at 1337; Layno, 6 Vet. App. at 469. There was no evidence demonstrating that the Veteran experienced any incapacitating episodes throughout the appeal. In fact, during the September 2009 VA examination, the Veteran specifically denied experiencing any incapacitating episodes in the 12 months prior to the examination and he has not reported any such episodes, as defined by regulation, throughout the appeal. The criteria for a 20 percent rating requires daily fatigue, malaise, and anorexia, without weight loss or hepatomegaly, requiring dietary restrictions or continuous medications. The criteria for a 40 percent rating also requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly. The Veteran's symptoms included the requisite frequency of fatigue, malaise, and anorexia, but also included weight gain and hepatomegaly, and he continued to take prescribed medications twice daily. Where there is a question as to which of two ratings shall be applied, the higher will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Given that the Veteran's symptomatology also included daily right upper quadrant pain; daily nausea; intermittent vomiting; lethargy; weakness; hepatomegaly; and cirrhosis, the Board finds that the disability picture presented by the Veteran's granulomatous hepatitis, with hepatosplenomegaly, more nearly approximates the criteria for a 40 percent rating. Id. The evidence did not demonstrate that the Veteran experienced "substantial weight loss" or other indication of malnutrition as a result of his granulomatous hepatitis, with hepatosplenomegaly. In fact, during the September 2009 VA examination, the Veteran denied any weight loss. Moreover, a physical examination demonstrated the Veteran's weight increased by less than 10 percent compared to his baseline. At the November 2008 Board hearing, the Veteran testified that he had gained 20 pounds. As such, the Board finds that the disability picture presented by the Veteran's granulomatous hepatitis, with hepatosplenomegaly, did not more nearly approximate the criteria for a 60 percent rating. Thus, the Board finds that a 60 percent rating is not warranted at any time. 38 C.F.R. § 4.114, Diagnostic Code 7345. As discussed above, the disability picture presented by the Veteran's granulomatous hepatitis, with hepatosplenomegaly included daily fatigue, right upper quadrant pain, and malaise, among other symptoms. However, the Veteran's daughter stated in May 2008 that he established a garden that he tended. Further, despite his reluctance, the Veteran was able to drive himself to the November 2008 Board hearing. Moreover, the September 2009 VA examiner concluded that the symptoms of the Veteran's granulomatous hepatitis, with hepatosplenomegaly, mildly affected the Veteran's ability to perform chores, exercise, and sports. The examiner also found that there was no effect on the Veteran's ability to shop, engage in recreation, travel, eating, bathing, dressing, toileting, and grooming. As such, the Board finds that the symptoms of the Veteran's granulomatous hepatitis, with hepatosplenomegaly, are not "near constantly debilitating" and, thus, a 100 percent rating is not warranted at any time. 38 C.F.R. § 4.114, Diagnostic Code 7345. The evidence of record includes a diagnosis of cirrhosis as a sequela of the Veteran's granulomatous hepatitis, with hepatosplenomegaly. Accordingly, the Board must determine whether a rating in excess of 40 percent is warranted pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7312. 38 C.F.R. § 4.114, Diagnostic Code 7345, Note (1). According to 38 C.F.R. § 4.114, Diagnostic Code 7312, cirrhosis of the liver with symptoms such as weakness, anorexia, abdominal pain, and malaise is rated 10 percent disabling. A 30 percent rating is warranted for cirrhosis with portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. Id. Cirrhosis with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 50 percent disabling. Id. Cirrhosis with history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks, is rated 70 percent disabling. Id. Cirrhosis with generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 100 percent disabling. Id. A Note to Diagnostic Code 7312 provides that, for rating under Diagnostic Code 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114. The evidence of record did not demonstrate that the Veteran's cirrhosis was manifested by weight loss; episodes of ascites; hepatic encephalopathy; hemorrhage from varices or portal gastropathy; or persistent jaundice. 38 C.F.R. § 4.114, Diagnostic Code 7312. As such, the Board finds that the a rating in excess of 40 percent for the Veteran's cirrhosis as a sequela of his service-connected granulomatous hepatitis, with hepatosplenomegaly, is not warranted at any time during the appeal pursuant to Diagnostic Code 7312. 38 C.F.R. § 4.114, Diagnostic Code 7345, Note (1); Schafrath, 1 Vet. App. at 594. B. Extraschedular Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2010). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2010). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned ratings inadequate. The Veteran's service-connected granulomatous hepatitis, with hepatosplenomegaly is evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7312, 7399-7345, the criteria of which is found by the Board to contemplate the level of occupational and social impairment caused by his disability. Id. The Veteran's granulomatous hepatitis, with hepatosplenomegaly is manifested by Daily fatigue; daily right upper quadrant pain; daily malaise; daily nausea; daily anorexia; intermittent vomiting; lethargy; weakness; hepatomegaly; and cirrhosis. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are contemplated by the disability picture represented by a 40 percent rating. Ratings in excess of 40 percent are provided for certain manifestations of granulomatous hepatitis, with hepatosplenomegaly, and certain manifestations of cirrhosis, but the medical evidence demonstrated that those manifestations are not throughout the appeal. As such the criteria for a 40 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.114, Diagnostic Code 7312, 7399-7345; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749. Finally, in reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against ratings in excess of those already granted to the Veteran's granulomatous hepatitis, with hepatosplenomegaly and cirrhosis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also Fenderson, 12 Vet. App. at 126. ORDER A 40 percent rating, but not more, is granted for granulomatous hepatitis, with hepatosplenomegaly throughout the appeal. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs