Citation Nr: 1304845 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-27 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C. 2. Entitlement to a rating in excess of 30 percent for service-connected degenerative arthritis of the right foot (hereinafter, "right foot disorder".). 3. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Stephanie Grogan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, assigned an increased rating of 30 percent for the Veteran's service-connected right foot disorder, effective October 4, 2007. The April 2008 rating decision also determined that new and material evidence had not been received to reopen the claim of service connection for hepatitis C, and denied entitlement to TDIU due to service-connected disability. The record reflects the RO subsequently determined that new and material evidence had been received to reopen the Veteran's hepatitis C claim, and adjudicated the merits of the underlying service connection claim. Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2012. A transcript of this hearing has been associated with the Veteran's VA claims folder. FINDINGS OF FACT 1. All notification and development necessary for the adjudication of the Veteran's appeal have been completed. 2. Service connection was originally denied for hepatitis C by a January 2000 rating decision, which was upheld by a May 2001 Board decision. Nothing in the record reflects the Veteran appealed the May 2001 Board decision to the United States Court of Appeals for Veterans Claims (Court). 3. The evidence received since the last prior denial of service connection for hepatitis C was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 4. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's hepatitis C was incurred in, aggravated by, or otherwise the result of his active service. 5. The Veteran's service-connected right foot disorder is not manifested by loss of use. 6. The Veteran's right foot disorder is his only service-connected disability. 7. The record does not reflect the Veteran is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected right foot disorder. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claim of entitlement to service connection for hepatitis C, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 2. The criteria for a grant of service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 3. The criteria for a rating in excess of 30 percent for the Veteran's service-connected right foot disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5284 (2012). 4. The criteria for assignment of a TDIU due to service-connected disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, under the Veterans Claims Assistance Act (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As an initial matter, the Board notes that for the reasons detailed below it finds that new and material evidence has been received to reopen the Veteran's hepatitis C claim. Therefore, no further discussion of the VCAA is required with respect to this aspect of his appeal as any deficiency has been rendered moot. The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case the Veteran was sent VCAA-compliant notification via letters dated in August 2006, October 2006, and January 2009. These letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the general information used by VA to determine disability rating(s) and effective date(s). The January 2009 letter also included a summary of the relevant rating criteria used to evaluate the service-connected right foot disorder. This case was last adjudicated below via the August 2012 Supplemental Statement of the Case (SSOC). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See 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). In addition, the Board finds that the duty to assist a claimant in the development of the case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the November 2012 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not indicated there is outstanding evidence relating the etiology of his hepatitis C to service; that he has symptoms of his service-connected right foot disorder that is not demonstrated by the evidence already of record; or that he is unemployable due to service-connected disability. With respect to the aforementioned November 2012 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ accurately noted the current appellate issues, summarized the general requirements to support these claims, and asked questions to clarify the Veteran's contentions. Moreover, the Veteran, through his testimony and other statements of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. Finally, neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the November 2012 hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board further notes the Veteran was accorded a VA medical examinations in January 2008 and February 2012 which evaluated the symptomatology of his service-connected right foot disorder. No inaccuracies or prejudice is demonstrated with respect to these examinations, nor has the Veteran reported his right foot has increased in severity since the most recent examination. The latter examination also included an opinion regarding the effect this service-connected disability has upon the Veteran's employability. In addition, a December 2010 VA medical opinion and February 2012 VA examination included opinions that addressed the etiology of his current hepatitis C. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, both the December 2010 VA medical opinion and the February 2012 VA examiner indicated they were aware of the relevant medical history regarding the Veteran's hepatitis C. In pertinent part, both noted that the Veteran's VA claims folder had been reviewed and summarized relevant findings therein regarding the hepatitis C. Moreover, both opinions were specific in their conclusions and supported by stated rationale consistent with the documented medical history. In view of the foregoing, the Board finds that the aforementioned medial evidence is adequate to adjudicate the Veteran's appellate claims. Consequently, the duty to assist has been satisfied. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Hepatitis C Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Risk factors for hepatitis C include intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. Veterans Benefit Administration (VBA) Fast Letter 98-110 (Nov. 30, 1998). A veteran may have been exposed to hepatitis C during the course of his or her duties as a military corpsman, a medical worker, or as a consequence of being a combat veteran. VBA Fast Letter 04-13 (June 29, 2004). The Board points out that there was no test available to detect the presence of hepatitis C until 1989. See VBA Fast Letter 98-110. Service connection was originally denied for hepatitis C by a January 2000 rating decision, which was upheld by a May 2001 Board decision. Nothing in the record reflects the Veteran appealed the May 2001 Board decision to the Court. The Board also notes that new and material evidence was not received during the appeal period of that decision so as to warrant consideration of 38 C.F.R. § 3.156(b). Therefore, that decision is final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence of record at the time of the May 2001 Board decision includes statements from the Veteran, his service treatment records, and post-service medical records which cover a period through 2000. In pertinent part, the medical evidence did not show a diagnosis of hepatitis C until 1999, years after his separation from active service. The May 2001 Board decision denied the claim finding that the evidence of record did not suggest a plausible etiological relationship between the Veteran's current hepatitis C and service, noting that the Veteran had not presented a theory for such a link other than noting that hepatitis C testing was not available until 1989. The evidence added to the record since the May 2001 Board decision includes additional statements from the Veteran, his testimony at the November 2012 Board hearing, and additional post-service medical records which cover a period through 2012. In pertinent part, the Veteran has contended that an in-service viral infection was the initial development of his hepatitis C. He also indicated that his hepatitis C may be due to air gun injection. As noted above, this claim was previously denied, at least in part, because the Veteran did not provide any theory as to how his current hepatitis C was etiologically related to service. Moreover, the additional medical records include a September 2010 private medical opinion from R. Hastings, D.O., Ph.D., who essentially opined that the Veteran's current hepatitis C originated with in-service viral illness. No such evidence was of record at the time of the last prior denial. Moreover, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for hepatitis C was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. The Board must now address the merits of the underlying service connection claim. In the adjudication that follows, the presumption that the evidence submitted to reopen is true without regard to the other evidence of record no longer applies. The Board also wishes to reiterate the fact that the RO previously determined that new and material evidence had been received, and has addressed the merits of the underlying service connection claim. Nevertheless, pursuant to the holdings of Barnett, supra , and Jackson, supra, the Board must still find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. However, inasmuch as the RO has already addressed the merits of the service connection claim, the Veteran is not prejudiced by the Board also addressing the merits of this case. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In considering the Veteran's contentions, the Board notes that as hepatitis C is a condition that requires specific medical testing to diagnose, it is not the type of disability subject to lay diagnosis pursuant to Davidson, supra, and Jandreau, supra; competent medical evidence is required to diagnose this disability and determine the etiology thereof. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board acknowledges that the Veteran's service treatment records confirm that he was treated for complaints of nausea, vomiting, and diarrhea in February 1977, with an impression of viral syndrome. However, the record does not reflect he was diagnosed with hepatitis C until decades after service, to include years after testing became available in 1989. Further, while the Veteran indicates he had continuity of symptomatology since his in-service treatment for the viral syndrome, this is inconsistent with the fact that no such symptoms were noted on his April 1977 release from active duty examination or the concurrent Report of Medical History. There was also no indication of any such symptomatology on VA medical examinations conducted in February 1980 and February 1983 which included findings as to the Veteran's overall medical condition as the matter of entitlement to nonservice-connected pension benefits were being adjudicated. As such, any opinion based upon continuity of symptomatology appears to be inconsistent with the evidence of record, and indicates the Veteran is an unreliable historian to the extent he contends otherwise. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The Board also observes that none of the other risk factors associated with hepatitis under VA Fast Letters 98-110 and 04-13 is demonstrated in the Veteran's service treatment records, nor has he otherwise identified such in-service risk factors. For example, there was no indication he received a blood transfusion or was otherwise exposed to blood products while on active duty. There is no indication he received any tattoos while on active duty. The Board acknowledges that there are references to substance abuse problems in the record, to include "heavy alcohol use" in November 1999 records, and reference to post-service drug problems in a June 2000 lay statement. However, there was no reference to in-service IV drug use. In short, the only factors demonstrated by the record as possibly relating the current hepatitis C to service is the documented in-service viral syndrome, and the Veteran's contentions regarding air gun injection. With respect to the air gun injection, VA Fast Letter 04-13 noted that a rating decision had been issued that was apparently based on a statement incorrectly ascribed to a VA physician to the effect that persons who were inoculated with a jet injector were at risk of having hepatitis C. The Fast Letter acknowledged that transmission of hepatitis C virus with air gun injections was "biologically plausible," notwithstanding the lack of any scientific evidence so documenting. It noted that it was "essential" that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the air gun was the source of the veteran's hepatitis C. The September 2010 private medical statement from Dr. Hastings did not comment upon in-service air gun injection nor did the December 2010 VA medical opinion. However, the February 2012 VA examination opined that the Veteran's hepatitis C was less likely related to receipt of vaccinations in service or any events while he was in the military service as there was no scientific or medical evidence that receipt of vaccinations causes hepatitis C. Therefore, the Board finds that the preponderance of the competent medical and other evidence of record is against the Veteran's current hepatitis C being related to in-service air gun injections. In regard to the documented in-service viral syndrome, the Board observes that Dr. Hastings stated in the September 2010 private medical opinion "that the Veteran's service connected injury in the military was the initial injury for his hepatitis C." It is not particularly clear what was meant to be conveyed by this statement, and no stated rationale appears in support of it other than noting that specific diagnostic testing for hepatitis was not available during service nor was it employed. If this opinion was based upon purported continuity of symptomatology, the Board has already noted that this is not consistent with the documented medical history to include the April 1977 release from active duty examination, as well as the VA medical examinations conducted in February 1980 and February 1983. Therefore, this opinion is entitled to little or no probative value in this case. The Board also observes that the December 2010 VA medical opinion concluded that the Veteran's hepatitis C was less likely as not a result of any event and/or condition that occurred and/or expressed in-service and/or within one year of discharge, including the viral illness and is at least as likely as not a result of post service exposure since discharge and was not caused by and/or worsened by an already service-connected disability. The VA clinician who promulgated this opinion noted that the Veteran had no gastrointestinal (GI) complaints and normal examinations at discharge and no complaints for about 20 years post discharge. The clinician further stated that he could find no information in the record to support the opinion that the in-service viral illness was the beginning of hepatitis C; and that this opinion was based on mere speculation and did not meet the standard of "at least as likely as not." Finally, it was noted that the record showed the Veteran, while in active service, was not in a high risk vocation. The Board acknowledges that the December 2010 VA medical opinion referred to the in-service viral illness as having been in 1974, when the record indicates such was in 1977. Nevertheless, the opinion is consistent with the fact that there was no subsequent symptomatology similar to this illness until decades after service. The Board further observes that the February 2012 VA examiner also stated that the Veteran had no GI complaints and the separation examination of April 1977 was normal and there was no evidence of any GI complaints for about 20 years post discharge. The examiner further opined that the Veteran's hepatitis C was most likely related to other events that occurred after he was discharge from service including blood exposure in August 1999 while he was trying to free the hand of co-worker, when his hand was caught in one of the machines and also due to the practices of unprotected sexual intercourse during 1999 and also due to alcohol abuse. In short, it appears both the December 2010 VA medical opinion and February 2012 VA examination concluded the Veteran's current hepatitis C was not related to service, to include the documented in-service viral syndrome, as he did not demonstrate symptoms consistent with such a finding until decades after his separation from service. The Board has already determined that these opinions were based upon an accurate understanding of the Veteran's medical history, and that the opinions expressed are consistent with this documented history. For these reasons, the Board finds preponderance of the competent medical and other evidence of record is against a finding that the Veteran's hepatitis C was incurred in, aggravated by, or otherwise the result of his active service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. Right Foot Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Diagnostic Code 5010, arthritis due to trauma and substantiated by X-ray findings is rated as degenerative arthritis under Diagnostic Code 5003. Further, under this Code section, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations a 20 percent rating is assigned. Id. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. Id. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Id. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. The VA General Counsel noted in a precedent opinion dated August 14, 1998, that Diagnostic Code 5284 is a more general Diagnostic Code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45. VAOPGCPREC 9-98. The precedent opinions of the VA General Counsel 's Office are binding upon the Board. 38 U.S.C.A. § 7104. Consequently, the Board must consider the guidelines of VAOPGCPREC 9-98 in adjudicating the instant case. Under Diagnostic Code 5284, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. Note following this Code provides that actual loss of use of the foot will be evaluated as 40 percent. By way of reference, normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350 (a)(2) The Board acknowledges that the record reflects the Veteran has significant impairment of his service-connected right foot disorder. For example, he used a wheelchair provided at his hearing because he could not stand for very long. He also testified that he regularly used a cane and could not walk without it; and that he could not stand without special inserts for his shoes. He testified that he could only stand for 10 minutes even with his cane and inserts. He also described difficulty walking, as well as symptoms of cramps, pain and numbness. See Transcript pp. 3-15. Despite the foregoing, as detailed below, the record does not reflect he has loss of use of the foot even when taking into account his complaints of pain. The Board observes that the January 2008 VA examination did find that the Veteran had abnormal gait as he limped severely on his right and bore his weight on his right heal. He had almost full plantar flexion to 40 degrees, with pain beginning at 35 degrees. He was estimated to have additional loss of 20 degrees following repetitive testing. There was no edema, disturbed circulation, or atrophy of the musculature, and muscle strength was graded as a 4. The range of motion in dorsiflexion is not clear, as it was recorded as "-35" degrees. Since normal dorsiflexion is to 20 degrees, the entry in the report is not understood, and will not be considered. The September 2010 private medical opinion from Dr. Hastings noted, in pertinent part, that the Veteran's right ankle had dorsiflexion to 10 degrees; as well as plantar flexion, inversion, and eversion all to 5 degrees. He was also noted as having a limp on the right side. The February 2012 VA examination noted that the Veteran was ambulatory and walked in with a cane. He did not wear braces and posture was normal, but it was noted that he had a slight limp on the right side. On physical examination, no abnormal finding was noticed except mild calluses at the bottom of the foot at metatarsal heads mainly at 1st metatarsal head. There was no swelling, edema, or effusion. There was no weakness or instability of the ankle. There was no tenderness on palpation. Movements of the foot and ankle were found to be normal and no pain notice. Range of motion showed plantar flexion to 50 degrees, and dorsiflexion to 10 degrees, with no additional limitations after repetitive testing. In short, even though the Veteran has demonstrated pain, limitation of motion, and other functional impairment of the right foot he is still able to walk to a certain degree with the assistance of a cane; he still has some degree of range of motion; and there was no evidence of instability or significant muscle weakness on either the 2008 or 2012 VA examinations. Moreover, the February 2012 VA examiner opined that the functional impairment of the Veteran's foot was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. In view of the foregoing, the Board finds that the record does not indicate the Veteran's service-connected right foot disorder has resulted in loss of use of that joint so as to warrant a rating in excess of 30 percent. The Board notes in making this determination it considered the applicability of "staged" rating(s) pursuant to Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but a thorough review of the record does not demonstrate any distinctive period(s) where the Veteran satisfied the criteria for a higher rating so as to warrant such a rating. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the Veteran's disability from his service-connected right foot disorder. As noted above, Diagnostic Code 5284 is a general code which evaluates the impact of various symptoms such as pain and limitation of motion on the overall functional impairment of the foot. As such the manifestations of the service-connected disability are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's service-connected right foot disorder and referral for consideration of extraschedular rating is not warranted. TDIU It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran's only service-connected disability is his right foot disorder, which the Board has determined does not warrant a rating in excess of 30 percent. Therefore, he does not satisfy the schedular standards for consideration of a TDIU, and is only entitled to consideration of a TDIU on an extraschedular basis. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In this case, the record reflects the Veteran last worked in 2001 as a bulk oil loader. The Board acknowledges that the right foot disorder would cause at least some degree of occupational impairment to such an occupation. However, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose, 4 Vet. App. at 363 (Noting that the disability rating itself is recognition that industrial capabilities are impaired). In this case, the Board finds that the level of occupational impairment due to the service-connected right foot disorder is adequately compensated by the current schedular rating. The record does not reflect the Veteran is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected right foot disorder. For example, the February 2012 VA examiner opined that this disability did not render him unable to secure and maintain any substantially gainful employment. Further, the evidence of record, to include the Veteran's own contentions, are that his service-connected right foot disorder in combination with other disabilities such as hepatitis C (for which the Board has determined service connection is not warranted), and non-service connected lumbar spine disorder, and depression render him unemployable. At his November 2012 hearing, he emphasized that it was his hepatitis C which resulted in his leaving employment in 2001 and why he has not worked since that time. See Transcript pp. 32-34. However, these nonservice-connected disabilities are not for consideration in determining whether the Veteran is entitled to a TDIU. In view of the foregoing, the Board finds that the record does not present an exceptional or unusual disability picture from the service-connected right foot disorder so as to find this disability alone renders him unemployable. Therefore, his claim of entitlement to a TDIU due to service-connected disability must be denied. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for hepatitis C, the claim is reopened. To this extent only the benefit sought on appeal is allowed. Service connection for hepatitis C is denied. A rating in excess of 30 percent for the Veteran's service-connected right foot disorder is denied. A TDIU due to service-connected disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs