Citation Nr: 1310274 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 08-17 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial compensable rating for residuals of Hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to June 1965. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony in support of his claim during an October 2012 hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). FINDING OF FACT The Veteran's Hepatitis C has not been manifested by fatigue, malaise, anorexia, or incapacitating episodes requiring treatment by a physician during the pendency of this claim. CONCLUSION OF LAW The criteria for a compensable rating for the Hepatitis C have not been met at any point during the pendency of this claim. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, and 4.114, Diagnostic Code 7354 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this appeal, the Board has reviewed all of the evidence in the claims file, both the physical file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA generally should be provided prior to an initial decision on a claim by the RO as the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The issue on appeal of whether an initial compensable evaluation is warranted for the Veteran's Hepatitis C stems from a granted claim of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. Notifying the claimant of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of these five elements in initial rating cases. See id. at 486; Quartuccio, 16 Vet. App. at 187; but see Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). In this circumstance, once a notice of disagreement (NOD) has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with the claimant, including as to what evidence is necessary to establish a more favorable decision with respect to this downstream elements of the claim. Id.; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). Here, prior to the initial rating decision in this matter, letters dated in May 2003, October 2003, and May 2006 informed the Veteran of the elements for establishing his entitlement to service connection and also provided notice of his and VA's respective responsibilities in obtaining relevant records on his behalf. And once service connection was granted in the July 2007 rating decision at issue, a May 2008 letter and SOC additionally informed him of the "downstream" disability rating and effective date elements of his claim, citing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning an initial compensable rating for this disability. Although the May 2008 letter and SOC were not sent prior to the initial rating decision in July 2007 deciding his claim, he had ample opportunity to provide additional information and evidence following receipt of this letter and SOC before his claim was readjudicated in a March 2010 SSOC. See Mayfield, 499 F.3d at 1323. So his claim has been reconsidered since providing all required notice. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c). Here, the Veteran's service treatment records and VA medical records are in the file. Private medical records he identified as pertinent also have been obtained and associated with the file for consideration, as well. He has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to this claim. Thus, the duty to assist has been satisfied with respect to obtaining relevant records on his behalf. See 38 C.F.R. § 3.159(c). The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a new VA examination must be performed. See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. But even when this is called into question, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Here, an appropriate VA liver examination was performed most recently in February 2010. The February 2010 VA examination report is adequate for deciding this claim. In this regard, the examiner reviewed the claims file and medical history, conducted an examination of the Veteran and recorded the clinical findings, and provided a clear rationale for the opinion stated such that the Board is able to make a fully informed decision on this claim. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy or thoroughness or the competency of the examiner. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291. A VA liver examination was also performed in May 2007, which included a review of the claims file, diagnostic imaging in the form of an ultrasound and a physical examination, and a discussion of the clinical findings on examination. The Veteran has not stated and there is no other evidence indicating there has been a material change in the severity of his Hepatitis C since he was last examined in February 2010. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the mere passage of time since an otherwise adequate VA examination was performed. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); VAOPGCPREC 11-95 (April 7, 1995). Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of this claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been alleged. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. II. Analysis The Veteran contends that he is entitled to an initial compensable rating his service-connected Hepatitis C, meaning a rating higher than just 0 percent. For the reasons and bases that follow, however, the Board finds that a compensable rating for this disability is not warranted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2012). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. In initial-rating cases, VA must assess the level of disability from the date of the claim for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim; this practice is known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's Hepatitis C is rated under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354. Under DC 7354, a noncompensable rating is assigned when Hepatitis C is nonsymptomatic. A rating of 10 percent is assigned when there is intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. Id. A rating of 20 percent is assigned for 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. Id. A 40 percent rating is assigned when Hepatitis C is manifested by daily fatigue, malaise, and anorexia with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Id. A rating of 60 percent is assigned when there is daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Id. A rating of 100 percent is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Sequelae of Hepatitis C, such as cirrhosis or malignancy of the liver are to be rated under an appropriate diagnostic code, but the same signs and symptoms are not to be used as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. Id., Note (1); see also 38 C.F.R. § 4.14 (rule against pyramiding). For purposes of evaluating conditions under Diagnostic Code 7354, an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7354, Note (2). By way of background, the Veteran initially was diagnosed with Hepatitis C in April 2001, as shown in a private treatment record. He was placed on a course of therapy with Interferon and Ribavirin and was noted in a September 2002 private treatment record to have had an "excellent response" to the therapy. This record also reflects that his last viral load in July 2002 was undetectable. Other private treatment records concerning his evaluation and care show the Interferon therapy was discontinued in January 2003. According to his October 2012 hearing testimony and his reported history in an October 2004 private psychiatric assessment, the Interferon had affected his appetite and he went from weighing 170 pounds to just in comparison 120 or 125 pounds. But the private treatment records from during this period documented his actual weight and show it changed relatively little, certainly much less than claimed, from 167 pounds in October 2001, prior to beginning therapy, to 158.6 pounds in September 2002. Indeed, by March 2003, about two months after his therapy was discontinued in January 2003, he had recovered his baseline weight of 167 pounds. So he only in actuality lost about 8.5 pounds while on Interferon therapy and eventually recovered his baseline weight of 167 about two months after discontinuing it. He submitted his service-connection claim for Hepatitis C, from which this appeal arises, in March 2003. The disability rating for his Hepatitis C only may be based on how it has manifested since the receipt of his claim since his claim arose in the context of him trying to establish his entitlement to service connection for this disability rather than trying to establish his entitlement to a higher or increased rating for an already established service-connected disability. See Fenderson, 12 Vet. App. at 125-26. If, instead, this was a claim for a higher rating for an already established service-connected disability, rather than an initial rating claim, then it would be permissible for the Board to look at the status of his disability even during the one year immediately preceding the receipt of his claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). This is not the situation at hand, however. A January 2005 letter from the Veteran's private physician states the Veteran had Hepatitis C with cirrhosis of the liver. This commenting physician also noted the Veteran was having trouble working due to fatigue, but did not state whether the Veteran's fatigue was due to his Hepatitis C. In any event, service connection since has been granted for depressive disorder secondary to the Hepatitis C, which initially was rated as 50-percent disabling but since has been rated higher, as 70-percent disabling. As well, a total disability rating based on individual unemployability (TDIU) also has been granted, so recognizing the Veteran is unable to obtain and maintain employment on account of his service-connected disabilities, thus, when considering both his depressive disorder and Hepatitis C residuals. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, and 4.19. In April 2007, the Veteran established care with VA and underwent an initial assessment. He reported that he "[had] had a 125 [pound] weight loss," but this record does not clarify when the weight loss occurred. In light of his other statements, including his testimony during his hearing before the Board, it seems likely that he had actually reported that his weight had dropped to 125 pounds during the Interferon treatment in 2002. No other symptoms were recorded in this record. The May 2007 VA examination report reflects that he had a history of Hepatitis C that was treated with Interferon and that he had no detectable virus in his blood, according to his reported history. The examiner noted the Veteran would remain seropositive for the rest of his life. On examination, he was observed to be a "thin man." His liver, kidneys, and spleen were not palpable and there was no shock tenderness over his liver. An ultrasound of his abdomen taken on the same day as that examination revealed no significant abnormalities, including with regards to his liver, kidneys, gallbladder, and spleen. The examiner opined that the Veteran's fatigue limited his employability "to some extent," but that a psychological disorder was more likely the cause of his limited employability, so referring to the depressive disorder that was service connected secondary to the Hepatitis C. A March 2008 VA treatment record reflects that the Veteran reported losing 20 pounds in the past three months because he did not have enough money to buy food. His weight loss was also attributed to maintaining a "rigorous biking schedule." A March 2008 VA treatment record also reflects that he enjoyed bike riding. VA treatment records dated in May and December 2009 document his weight as 169 pounds. During his February 2010 VA compensation examination, he reported daily episodes of severe fatigue - albeit without malaise, nausea, vomiting, abdominal pain, pain in his right upper quadrant, or constitutional symptoms. He did complain of poor appetite and stated that he had lost at least 2- pounds in the last year. The examiner noted that the Veteran's weight on examination was 152 pounds, and observed that it was down from 154 pounds in December 2009. But, in total, that amounted to just a 2-pound weight loss. The Veteran denied incapacitating episodes with bedrest prescribed by a physician, although he reported taking daily naps due to his severe fatigue. He said that he had been a fisherman for 25 years but had been unable to work since 2002 when he was treated for Hepatitis C. He attributed his inability to work mainly to the severity of his fatigue. On objective physical examination, there was no liver tenderness or right upper quadrant tenderness and no signs of malnutrition. The examiner concluded the Veteran's Hepatitis C had been successfully treated with Interferon and that there was no recurrence at the time of that evaluation. The examiner also noted that the only residuals reported by the Veteran were arthralgias and fatigue, and that his fatigue was "at least as likely as not" caused by his chronic depression, which was itself secondary to his Hepatitis C. Thus, this examiner determined the Veteran's Hepatitis C was not incapacitating. VA psychiatric examinations in July 2008 and March 2010, which were performed in connection with a separate claim for the associated mental illness, also reflect findings of fatigue, reduced appetite, and loss of weight - but on account of the depression. The Veteran, as mentioned, already is being separately compensated for the depressive disorder that is secondary to his Hepatitis C; he previously had a 50 percent rating for this associated psychiatric disability, but now has an even higher 70 percent rating and indeed has effectively since January 12, 2010, the same effective date as his TDIU. During his more recent October 2012 Travel Board hearing, he testified that he gets lethargic and tires easily. He stated that his body aches a lot of the time and he has to take a nap for two or three hours. He stated that these symptoms and his need to take a nap occurred every day. He also stated that his average weight was around 150-155 pounds prior to getting ill, and that it went down to about 125 pounds during his illness. But when asked how much he now weighs, he responded about 160 pounds. He did not report any current weight loss or decreased appetite in his testimony. Based on the totality of the evidence, the criteria for a compensable rating for the Hepatitis C have not been met during the pendency of this claim as the evidence does not show fatigue associated with this condition (instead, attributed to the also service-connected depressive disorder), and does not show malaise, anorexia, or incapacitating episodes requiring treatment by a physician. While the competent and credible evidence confirms the Veteran has had severe fatigue on a daily basis, his fatigue consistently has been attributed to his depressive disorder (depression), both by VA mental health care professionals, as shown in the VA psychiatric examination reports, and by the medical professionals who evaluated his Hepatitis C in May 2007 and February 2010. There have been no findings during the pendency of this claim that his fatigue is a direct symptom of his Hepatitis C. The Board realizes he believes otherwise, but this is a medical, not lay, determination because Hepatitis C is not the type of "simple" condition that is readily amenable to mere lay comment regarding its associated symptoms. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, attribution of specific symptoms like fatigue to Hepatitis C, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, the Veteran's fatigue already has been compensated by the evaluations assigned for his service-connected depressive disorder, initially 50 percent and more recently higher, 70 percent. Service connection for his depressive disorder as secondary to his Hepatitis C was granted in a November 2008 rating decision, effective June 1, 2007, the date of his claim for this disorder. A rating of 50 percent initially was assigned from June 1, 2007 in the November 2008 rating decision, but an even higher 70 percent rating was assigned from January 12, 2010 by rating decision dated in April 2010. These rating decisions note his fatigue is associated with his depression. Thus, his fatigue may not be compensated separately from June 1, 2007, as this would violate the rule against compensating the same disability twice under different diagnoses. See 38 C.F.R. § 4.14. With regards to the earlier period from March 4, 2003 to May 31, 2007, when service connection was not yet established for his depression, the competent and credible evidence does not show his fatigue was a symptom of his Hepatitis C, but even then that it instead was associated with his depression. Indeed, the evidence shows he has not had any residual symptoms of Hepatitis C during the pendency of this claim. Thus, an evaluation based on his fatigue prior to June 1, 2007, also is not warranted. With regards to his complaints of weight loss and poor appetite, the evidence shows that he has consistently maintained a relatively normal weight during the pendency of this claim. Specifically, he testified during his Travel Board hearing that his normal weight is around 150 to 155 pounds, and his weight always has been shown to be above 150 pounds in his treatment records since successful completion of his drug therapy. Indeed, the May 2009 and December 2009 VA treatment records show that his weight was 169 pounds, which is two pounds higher than his weight of 167 pounds in October 2001 prior to beginning the Interferon treatment for his Hepatitis C. Notably, the February 2010 VA examiner observed the Veteran's weight was 152 pounds, down from 154 pounds according to a December 2009 VA treatment record. However, that represented only a 2-pound loss, and his weight was actually recorded as 169 pounds in both the May and December 2009 VA treatment records, which casts serious doubt on the VA examiner's finding. Such a finding would mean that the Veteran had lost 17 pounds in less than two months based on the dates of the December 2009 VA treatment record and the February 2010 VA examination report. But, in any event, the VA examiner found that the Veteran had only lost two pounds (i.e., from 154 to 152 pounds) and the Veteran himself did not report such dramatic weight loss. Thus, the Board does not find it plausible that he went from 169 to 152 pounds between December 2009 and February 2010, but rather that the VA examiner likely mis-recorded the Veteran's weight. The Veteran's reports of weight loss also are not credible. He testified during his Travel Board hearing that he went from about 170 pounds to 125 pounds during his Interferon treatment, but the private treatment records during this period show that his baseline weight of 167 pounds only dropped by 8.5 pounds (to 158.6 pounds) and quickly recovered about two months after he discontinued Interferon treatment. Thus, his reported history of a dramatic weight loss from about 170 to 125 pounds is manifestly inconsistent with the contemporaneous treatment records and therefore is not credible. See Caluza, 7 Vet. App. at 511 (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); Madden v. Gober, 125 F.3d 1477, 1480 (Fed. Cir. 1997) (observing that "lay evidence which is in fundamental conflict with other lay evidence and is, for that reason, found not credible in a given case, is surely suspect"); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by the claimant). The inconsistencies between the Veteran's statements and the treatment records likewise render his more recent reports of 20-pound weight losses not credible, especially in light of the fact that his weight of 169 pounds in the May 2009 and December 2009 VA treatment records is even greater than his baseline weight of 167 pounds in the October 2001 private treatment record. Again, as stated above, the Board finds it likely that the February 2010 VA examiner simply misstated the Veteran's weight in her discussion. She did not actually list his weight as a clinical finding but simply mentioned it in her discussion, whereas in the treatment records his weight is listed along with his other vitals, which reinforces the objective validity of the weight recorded in those records. In any event, the VA examination reports and treatment records do not reflect any objective clinical findings of anorexia or weight loss. Neither the May 2007 nor the February 2010 VA examination report attribute loss of appetite or weight loss to the Veteran's Hepatitis C. Rather, the July 2008 and March 2010 VA psychiatric examinations attribute the Veteran's decreased appetite to his depression. Notably, the March 2008 VA treatment record reflects that the Veteran himself attributed a reported 20-pound weight loss to "lack of money to buy food" and a "rigorous biking schedule," as opposed to lack of appetite. Although he was noted to be a "thin man" in the May 2007 VA examination report, he was not found to be underweight. Thus, to the extent he has had decreased appetite or weight loss during the pendency of this claim, the competent evidence shows that it is not a symptom or manifestation of his Hepatitis C but is rather due to other unrelated factors. The competent evidence is also negative for malaise, which the Veteran denied having during his February 2010 VA examination. Although he reported arthralgias, the examiner did not find them clinically significant with regard to Hepatitis C, but rather found that it had completely resolved. There is also no indication that the body aches reported by the Veteran during his October 2012 Travel Board hearing are distinct from the arthralgias he reported during his February 2010 VA examination. Accordingly, his Hepatitis C has not been manifested by intermittent fatigue, malaise, and anorexia during the pendency of this claim, all three of which must be present, if only intermittently, to warrant a compensable rating under DC 7354. The Court has distinguished when rating criteria are conjunctive versus disjunctive. If conjunctive, such as evidenced by the use of the word "and" in a statutory provision or when reciting the relevant regulatory requirements, then all of the criteria must be satisfied to warrant a higher rating. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991). Whereas, if disjunctive, as evidenced by the use of the word "or" instead, then only one of the listed requirements must be met in order for a higher rating to be assigned. See Johnson v. Brown, 7 Vet. App. 95 (1994). The Court has further explained that the joining of criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met. See Tatum v. Shinseki, 23 Vet. App. 152 (2009). Here, all the criteria must be met given the clearly conjunctive structure of the language used in the diagnostic code. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Tatum, 23 Vet. App. at 155-56 (comparing the successive nature of DC 7913 for diabetes mellitus with the non-successive DC 7903 for hypothyroidism). And, to reiterate, whether the Veteran's Hepatitis C is manifested by fatigue, malaise, anorexia, or other symptoms is a determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)( observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). Thus, while he is competent to report such symptoms, as a layperson he does not have the medical training or expertise to make a competent determination as to whether his symptoms are due to Hepatitis C or other factors. See Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Therefore, the Board accords more weight to the findings of the VA examiners who have determined that his Hepatitis C is not manifested by these or other symptoms; unlike him, they have the necessary medical expertise to make such a determination. See id.; see also Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence"). Finally, there is no evidence that the Veteran has had incapacitating episodes due to Hepatitis C as defined in DC 7354, which provides that they must be manifested by acute signs and symptoms requiring treatment by a physician. 38 C.F.R. § 4.114. The evidence shows that he has not had any medical treatment for acute signs and symptoms associated with Hepatitis C during the pendency of this claim. Thus, because he has not had intermittent fatigue, malaise, and anorexia due to Hepatitis C during the pendency of this claim, or any incapacitating episodes as defined in DC 7354, his Hepatitis C does not approximate the criteria for a higher 10 percent or greater rating. See id. Rather, the VA examiners have consistently found that his Hepatitis C was not manifested by any residuals apart from the fact that he would remain seropositive for the rest of his life. His Hepatitis C therefore most closely approximates the criteria for a 0 percent rating under DC 7354, which is assigned when there is serologic evidence of Hepatitis C that is not manifested by any symptoms (i.e., nonsymptomatic = asymptomatic). See id. A finding that the criteria for a 10 percent rating are not met also precludes assignment of a 20 percent, 40 percent, 60 percent, or 100 percent rating under DC 7354, as each of these evaluations also require the presence of fatigue, malaise, and anorexia associated with Hepatitis C. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (holding that when "the evaluation for each higher disability rating include[s] the criteria of each lower disability rating," then it follows that "if a component [is] not met at any one level, the Veteran [can] only be rated at the level that [does] not require the missing component"). Moreover, the evidence does not show that his Hepatitis C requires dietary restriction or continuous medication, or that it is manifested by hepatomegaly, substantial weight loss (or other indication of malnutrition), or near-constant debilitating symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgias, and right upper quadrant pain. See 38 C.F.R. § 4.114, DC 7354. Thus, the criteria for a compensable rating at any percentage evaluation under DC 7354 have not been met. The Board also has considered the potential application of other diagnostic codes, including DC 7312 for cirrhosis of the liver. See 38 C.F.R. § 4.114. There was suggestion the Veteran has cirrhosis of his liver, but he has not been diagnosed with cirrhosis of the liver or other pathology or symptoms associated with Hepatitis C. Rather, his Hepatitis C is not manifested by any residuals other than his service-connected depression. Accordingly, higher or separate ratings are not warranted under any other diagnostic code. In sum, the Veteran's Hepatitis C has not met the criteria for a compensable rating at any point since his claim for service connection for this disorder. Thus, a staged rating is not warranted since 0 percent represents his greatest level of disability since the filing of this claim. See Fenderson, 12 Vet. App. at 125-26. The Board has considered, as well, whether the Veteran's claim should be referred for an extra-schedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extra-schedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extra-schedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Referral for extra-schedular consideration is not warranted though in this particular instance. The Veteran's Hepatitis C is not manifested by any symptoms or functional impairment, as discussed above. His depression secondary to his Hepatitis C already is being compensated and the evaluation of this associated disorder is not at issue in this appeal. The symptoms reported by him, including fatigue, malaise, and anorexia or weight loss have not been attributed to his Hepatitis C and, moreover, are expressly addressed by the rating criteria in DC 7354. See 38 C.F.R. § 4.114. Accordingly, a comparison of his asymptomatic Hepatitis C and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely, whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extra-schedular consideration without regard to whether there was marked interference with employment). Moreover, he has not been hospitalized for Hepatitis C during the pendency of this claim, certainly not frequently. Rather, his evaluation and treatment of this disability has been entirely on an outpatient basis. And his unemployment has been attributed primarily to his depression rather than his Hepatitis C, and in any event he already resultantly has been granted a TDIU, so recognition his service-connected depression and Hepatitis C (even if not by equal contribution) render him incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19. Therefore, referral for extra-schedular consideration is unwarranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995), and VAOPGCPREC 6-96 (August 16, 1996). Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to an initial compensable rating for Hepatitis C is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. ORDER The claim of entitlement to an initial compensable rating for Hepatitis C is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs