Citation Nr: 1319500 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 07-19 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include as secondary to hepatitis C and residuals of viral hepatitis. 2. Entitlement to an increased rating for hepatitis C and residuals of viral hepatitis, rated noncompensable to April 19, 2007, 10 percent from April 29, 2007 to March 22, 2012, and 60 percent thereafter. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to January 1982. This case comes to the Board of Veterans' Appeals (Board) on appeal of July and November 2006 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Juan, the Commonwealth of Puerto Rico, which denied service connection for a psychiatric disability, denied a compensable rating for viral hepatitis and found that new and material evidence had not been submitted to reopen a claim of service connection for hepatitis C. The case was remanded by the Board in June 2008 and in an October 2009 decision the Board found new and material evidence sufficient to reopen the claim of service connection for hepatitis C and found and service connection was warranted for hepatitis C. The matter of an increased rating for hepatitis C and viral hepatitis was remanded as was the matter of service connection for a psychiatric disability. The case was again remanded by the Board for additional development in May 2011 and February 2012. The issue of entitlement to service connection for a psychiatric disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. For the rating period from the date of the Veteran's claim on April 6, 2006, until May 21, 2010 the Veteran's hepatitis was manifested by intermittent vomiting, nausea, malaise, and muscle pain, of one week's duration. 2. For the rating period from May 21, 2010, until August 17, 2011, hepatitis was primarily manifested by near constant fatigue, malaise, and anorexia; intermittent nausea and vomiting; and constant right upper quadrant pain. 3. From August 18, 2011, the Veteran's hepatitis has been manifested by daily fatigue, malaise, anorexia, arthralgia, and right upper quadrant pain, with six weeks of incapacitating episodes over the past 12 months. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent, but not higher, for hepatitis C with viral hepatitis were met from the date of the Veteran's claim on April 6, 2006, until May 20, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7345, 7354 (2012). 2. The criteria for a rating of 20 percent, but not higher, for hepatitis C with viral hepatitis were met between May 21, 2010, through August 17, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7345, 7354 (2012). 3. The criteria for a rating of 60 percent, but not higher, for hepatitis C with viral hepatitis were met as of August 18, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Codes 7345, 7354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the requirement is for generic notice of the type of evidence needed to substantiate the claim, such evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). As the determination regarding the increased rating for hepatitis C granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A September 2011 supplemental statement of the case provided notice on the downstream element of initial rating, while a November 2011 rating decision and supplemental statement of the case readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105 (West 2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service medical records and pertinent post-service treatment records have been secured. The Veteran was provided a VA medical examination of service-connected hepatitis, most recently in April 2012. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2012). Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012); 38 U.S.C.A. § 1155 (West 2002). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in favor of the Veteran for each such issue. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). Staged ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived were experienced directly through the senses. 38 C.F.R. § 3.159 (2012). Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge. Personal knowledge is that which comes to the witness through the use of the senses. Lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness. Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, that does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, The Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Hepatitis Service connection for hepatitis was granted by the RO in an October 1982 rating decision. A 0 percent initial disability rating was awarded under the provisions of Diagnostic Codes 7345. The Veteran claimed an increased rating in April 2006. Service connection for hepatitis C was granted by the Board in an October 2009 decision. The rating for hepatitis C and viral hepatitis was increased to 10 percent, effective on April 29, 2007, in a September 2011 rating decision under the provisions of Diagnostic Codes 7345 and 7354. The rating was again increased to 60 percent under the same Diagnostic Codes, effective March 22, 2012, in a November 2012 rating decision. The Veteran has not expressed satisfaction with the ratings, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Diagnostic Code 7345 provides ratings for chronic liver disease without cirrhosis, including Hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, and drug-induced hepatitis, but excludes bile duct disorders and hepatitis C. Diagnostic Code 7354 provides ratings for signs and symptoms due to hepatitis C. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such rating. 38 C.F.R. § 4.114 (2012). Hepatitis that is nonsymptomatic is rated 0 percent. Hepatitis with intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period, is rated 10 percent. Hepatitis with 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, is rated 20 percent. Hepatitis with 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, is rated 40 percent. Hepatitis with 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, is rated 60 percent. Hepatitis with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), is rated 100 percent. 38 C.F.R. § 4.114 (2012). Sequelae, such as cirrhosis or malignancy of the liver, are to be rated under an appropriate diagnostic code, but not to use the same signs and symptoms as the basis for a rating under Diagnostic Code 7354 and under a diagnostic code for sequelae. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (1) (2012). For purposes of rating conditions under Diagnostic Code 7354, 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, Diagnostic Code 7354, Note (2) (2012). Pursuant to the Veteran's claim for increase, received on April 6, 2006, the Veteran was examined by VA in May 2006. At that time, the Veteran's history of hepatitis was reviewed. He denied hospitalization due to hepatitis, bleeding, or recent jaundice. He reported that he had suffered from abdominal pain and had acid reflux. He denied weight loss. He stated that he became tired on exercise and developed right leg and arm pain. He referred to occasional nausea and vomiting. On examination, there was epigastric tenderness on palpation, but no superficial abdominal veins, splenomegaly or evidence of ascites. There was no evidence of jaundice, palmar erythema, spider angiemata, or malnutrition. A report of an abdominal sonogram showed slightly absorptive liver parenchyma compatible with fatty liver changes versus hepatocellular disease. The diagnosis was hepatitis C viral infection. VA outpatient treatment records include an October 2006 report that shows elevated liver enzymes. In March 2007, hepatitis C was noted to be stable, with chronically elevated liver enzymes. On April 29, 2007, the Veteran was treated in the emergency room for complaints of vomiting and nausea, with malaise and muscle pain, of one week duration. Additional treatment records show that the Veteran continued to be treated for elevated liver enzymes, with medication at times. Records show that the Veteran was diagnosed with cirrhosis of the liver, which has been service connected and separately rated 10 percent disabling. On examination by VA on May 21, 2010, the Veteran complained of stomach disorders that he believed were the result medications that he was taking. The Veteran had been treated with Interferon and Rivabirin for almost one year. He reported multiple side effects such as weight loss, diarrhea, general malaise, rectal bleeding, skin rash, neutropenia, and depression. The symptoms persisted after he stopped taking the medications. He was described as having had three incapacitating episodes over the last twelve months, of over 10 days duration. Symptoms of liver disease included fatigue and malaise daily; and intermittent nausea, vomiting, anorexia, weight loss, and right upper quadrant pain. The diagnosis was chronic hepatitis C with cirrhosis. The examiner stated that the diagnoses affected his activities of daily living. An examination was conducted by VA on August 18, 2011. At that time, the Veteran complained of constant right upper quadrant pain. There were also complaints of fatigue, general malaise, anorexia, and joint pain. He stated that the symptoms had progressively worsened. His current symptoms included near constant fatigue, malaise, and anorexia; intermittent nausea and vomiting; and constant right upper quadrant pain. On examination by VA in March 2012, the Veteran was diagnosed as having hepatitis C and cirrhosis of the liver, which has been separately rated 10 percent disabling and is not subject of this appeal. The Veteran complained of right upper quadrant pain that he rated at 6 of 10, general malaise, excessive tiredness, fatigue, anorexia, and diarrhea. He had received medical treatment and been to the emergency room for incapacitating pain. He did not require the use of continuous medication for the control of his liver disease. He reported daily fatigue, malaise, anorexia, arthralgia, and right upper quadrant pain. He also had complaints of intermittent nausea and vomiting. It was noted that over the past 12 months, the Veteran had six weeks or more of incapacitating episodes. The Veteran submitted a claim for an increased rating for hepatitis in April 2006. His rating was increased to 10 percent as of April 2007. The basis of that rating was an April 2007 emergency room report showing he was treated in the emergency room for complaints of vomiting and nausea, with malaise and muscle pain, of one week duration. Review of the record shows that the Veteran had those same complaints at the time he was first examined after his application for increase in May 2006. With the resolution of reasonable doubt, the Board finds that the symptoms on which the 10 percent award was made effective in April 2007 were those of which he complained on his first examination after his application for increase in April 2006. Therefore the 10 percent rating is effective as of the date of claim on April 6, 2006. However, there were no complaints of daily fatigue, malaise, or anorexia or of incapacitating symptoms having a total duration of at least two weeks, but less than four weeks, during the earlier 12-month period from April 6, 2006, to May 20, 2010. Therefore, the Board finds that a rating higher than 10 percent was not warranted for that period. On examination by VA on May 21, 2010, it was noted that the Veteran was described as having had three incapacitating episodes over the last twelve months, of over 10 days duration. Symptoms of liver disease included daily fatigue and malaise; and intermittent nausea, vomiting, anorexia, weight loss, and right upper quadrant pain. He had been treated with Interferon and Rivabirin for almost one year, with his symptoms persisting after he stopped taking the medications. As incapacitating episodes of more than two weeks, but less than four weeks were shown within a year, the Board finds that a 20 percent rating is shown to be warranted as of May 21, 2010. However, the Board finds that a rating in excess of 20 percent was not demonstrated at that time because the evidence did not show hepatomegaly, or incapacitating episodes of at least four weeks during a 12-month period. A November 2012 rating decision granted an increased rating of 60 percent, effective March 22, 2012, based on the report of incapacitating episodes of over six weeks over the past 12 months. Although there is no description of incapacitating episodes of the lengthy duration demonstrated in the August 2011 examination report, resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms as of August 18, 2011, are sufficient to provide a basis for the 60 percent rating as of that date. Although the Veteran had complaints of fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain, those are not shown to be near-constant such that they could provide a basis for a 100 percent schedular rating for hepatitis alone. Under these circumstances, the rating of 60 percent, but not higher, is shown to have been warranted as of August 18, 2011. In summary, the Board finds that the Veteran met the criteria for the 10 percent rating, but not higher, as of the date of his claim for increase on April 6, 2006. As of May 21, 2010, a 20 percent rating, but not higher, is shown to have been warranted. Eligibility for the rating of 60 percent, but not higher, is shown on examination on August 18, 2011. The claim is allowed to this extent. The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225 (1993). There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to rate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet App 111 (2008) In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout each step of the appeal periods under consideration are contemplated by the rating schedule. The Veteran's hepatitis symptoms directly correspond to the schedular criteria for each level. Therefore, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's hepatitis, and no referral for an extraschedular rating is required. Finally, it is noted that in a May 2013 rating decision, the RO found that the Veteran was entitled to a total rating based on individual unemployability (TDIU). Therefore, the matter of entitlement to a TDIU rating is not before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER From April 6, 2006, to May 20, 2010, a 10 percent rating, but not higher, for hepatitis is granted. From May 21, 2010, to August 17, 2011, a 20 percent rating, but not higher, for hepatitis is granted. As of August 18, 2011, a 60 percent rating, but not higher, for hepatitis is granted. REMAND Regarding the Veteran's claim of service connection for a psychiatric disability, it is noted that one of the Veteran's contentions is that the psychiatric disability is due to or aggravated by his service-connected hepatitis. 38 C.F.R. § 3.310 (2012). The most recent remand of the Board requested a medical opinion regarding secondary service connection. It was noted that secondary service connection could be established if the psychiatric disability is proximately due to or the result of service-connected hepatitis or if the psychiatric disability is aggravated by the service-connected disability. While the March 2012 examination that was obtained included an adequate opinion regarding direct service connection, the possibility of aggravation was not addressed, even though specifically requested in the remand. Therefore, the case must again be remanded to obtain that opinion. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current nature and etiology of any psychiatric disability. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any psychiatric disability is aggravated by service-connected hepatitis. The examiner must review the claims file and must note that review in the report. The examiner should provide complete rationale for all conclusions reached. 2. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs