Citation Nr: 1323471 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 06-36 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a liver disorder with history of hepatitis C. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1973. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claims for entitlement to service connection for a stomach condition and an evaluation in excess of 10 percent for a liver disorder with history of hepatitis C. In February 2007, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of this hearing is of record. In October 2010 and November 2012, the Board remanded this case for further evidentiary development. In November 2012, the Board found that the representatives October 2012 statement that the Veteran is unemployable, particularly due to fatigue associated with his service-connected liver disorder, reasonably raised the issue of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The case has since been returned to the Board for further appellate consideration. In a February 2013 rating decision, the Appeals Management Center (AMC) granted service connection for non-linear scars and reflux with nausea, both associated with multiple ventral hernia repairs with recurrent hernia secondary to service-connected liver laceration with history of hepatitis C. A 20 percent evaluation was assigned for nonlinear scars, effective February 6, 2013, and a 10 percent evaluation was assigned for reflux with nausea, effective November 5, 2005, the date the claim for service connection for a stomach condition was received. The AMC also increased the evaluation assigned for service-connected ventral hernia repairs with recurrent hernia to 20 percent, effective February 6, 2013. As the February 2013 grant of service connection for reflux with nausea represents a complete grant of the benefit sought on appeal with regard to service connection for a stomach condition, and there is no indication that the Veteran disagrees with the initial 10 percent evaluation assigned for reflux with nausea or with the incidental increased evaluation assigned for his service-connected hernia disability, those issues are not currently before the Board for appellate consideration. A review of the Veteran's Virtual VA claims file is significant for additional relevant VA treatment records from the Detroit and Tennessee Valley VAMCs. These records were been received prior to the issuance of the May 2013 supplemental statement of the case. The records were considered in reaching the determination herein. In November 2012, the Board noted that claims for entitlement to service connection for hypertension and depression had been raised in the representatives brief dated in October 2012, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they were referred to the AOJ for appropriate action. There is no indication that any action has been taken on these claims, thus, they are again referred to the AOJ for appropriate action. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's liver disorder with history of hepatitis C has not been manifested at any time during the appeal period by symptoms more nearly approximating daily fatigue, malaise, and anorexia (without minor weight loss and hepatomegaly), requiring dietary restriction or continuous medication; or by incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 10 percent for a liver disorder with history of hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7345 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted above, the Board previously remanded this case for additional development in October 2010 and November 2012. With respect to his service-connected liver disorder with history of hepatitis C, in accordance with the October 2010 remand, the Veteran was afforded a VA examination to determine the nature and severity of his service-connected liver disorder in December 2010. Available VA treatment records dating since 2004 were obtained from the Chattanooga and Detroit VAMCs in March 2012. The claim was readjudicated in an April 2012 supplemental statement of the case (SSOC). In accordance with the November 2012 remand, the Veteran was afforded a VA examinations in February and April 2013 to determine the effects that his service-connected disabilities have on his ability to obtain and maintain substantially gainful employment and the claim was readjudicated in a May 2013 supplemental statement of the case. Thus, with respect to the claim for increase for a service-connected liver disorder, there is compliance with the Board's remand instruction. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in November 2005 and March 2006, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the November 2005 letter notified the Veteran of: information and evidence necessary to substantiate his claim for increase; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The letter informed the Veteran that in order to establish a higher rating, the evidence would need to show that his disability had increased in severity and of the types of evidence that could be submitted to support his claim for an increased rating. The March 2006 letter provided notice of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for an increased disability rating for a liver disorder with history of hepatitis C in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Although the record contains a March 2012 formal finding of unavailability pertaining to treatment records from the Tennessee Valley VAMC and Chattanooga CBOC dating from December 2004 to August 2009, VA treatment records show that the Veteran moved from Detroit to Tennessee in or around June 2009. He was initially seen to establish care at the Chattanooga VA COBC in August 2009. Thus, it appears that all VA treatment records dated during the rating period are of record. Additionally, the Veteran was provided with VA examinations to determine the nature and severity of his service-connected liver disorder with history of hepatitis C in December 2005, December 2010, and in April 2013. The aforementioned examination reports reflect that the examiners reviewed and recorded the Veteran's documented and/or reported medical history and current complaints, conducted appropriate examinations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Further, the combination of the Veteran's testimony and notation in VA examination reports documenting functional complaints and problems associated with the Veteran's liver disorder with hepatitis C provide a full and accurate picture of the Veteran's disability so as to allow the Board to render an informed decision. Thus, the Board concludes that the evidence of record is adequate for purposes of rendering a decision in the instant appeal and 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) (2012); Barr, 21 Vet. App. at 312. The Board also observes that the Veteran was afforded a personal hearing before a DRO at the RO in February 2007 during which he presented oral argument in support of his claim for an increased rating. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs 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, the DRO fully explained the issue on appeal during the hearing. Significantly, neither the appellant nor his representative 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 hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). All appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Statements and testimony received from the Veteran and his representative show that they have actual knowledge of the information and evidence necessary to substantiate the claim. For the foregoing reasons, the duties to notify and assist have been met and it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. 38 C.F.R. § 20.1304(c) (2012). Increased Rating The Veteran and his representative essentially contend that his service-connected liver disorder with history of hepatitis C presents a greater degree of impairment than is reflected by the currently assigned 10 percent evaluation. The Veteran's representative claims that the Veteran's fatigue, which requires frequent naps, is associated with the Veteran's service-connected liver disorder with history of hepatitis and warrants a 100 percent evaluation. The Veteran claims that an increase is warranted because his condition is "more chronic" than it was during service. Specifically, he has been diagnosed with various strains of hepatitis, which he will have for the remainder of his life. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. The Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). 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 (Fed. Cir. 2007). Historically, the Veteran's liver disorder with history of hepatitis C was initially rated as noncompensably (0 percent) disabling by a 1993 rating decision, effective June 17, 1992. In June 2005, the Board granted an increased initial 10 percent evaluation for laceration of the liver with history of hepatitis C. The current appeal stems from a November 2005 claim for increase wherein the Veteran asserted that his service-connected liver disorder had worsened. The relevant temporal focus for adjudicating the level of disability in an increased rating claim is from the time period one year before the claim was filed, in this case, November 2004, one year prior to the Veteran's November 2005 claim, until VA makes a final decision on the claim. See Hart, supra; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). VA regulations provide that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. See 38 C.F.R. § 4.113. Ratings under diagnostic codes 7301 to 7329, inclusive; 7331, 7342 and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Veteran's liver disorder with history of hepatitis C is rated under DC 7345, which rates chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C). 38 C.F.R. § 4.114, DC 7345. A 10 percent rating under DC 7345 requires 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 20 percent rating requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. A 40 percent rating requires 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 60 percent rating requires daily fatigue, malaise and anorexia with substantial weight loss (or other indication of malnutrition) and hepatomegaly; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks, during the past twelve- month period, but not occurring constantly. Id. A 100 percent rating for chronic liver disease without cirrhosis requires near constant debilitating symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. Note (2) of Diagnostic Code 7345 indicates that an "incapacitating episode" is defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. VA Treatment records dating since November 2004 show that during evaluation at the VA hepatitis C clinic the Veteran the Veteran's hepatitis C has remained inactive with hepatitis viral loads under 3000. Liver function testing also remained normal with SGOT/AST ranging from 16 units in March 2011 to 25 units at most in December 2005 and SGPT/ALT ranging from 22 units in March 2011 to 36 units at worst in August 2006. In November 2004, a VA hepatitis C clinic note stated that the Veteran's documented VCVRNA was documented to be less than 3000 on two separate occasions dated six months apart in 2004. Thus, he did not have chronic hepatitis C that needed treatment, only past exposure with clearance of the virus. The Veteran underwent a VA liver examination in December 2005. The Veteran complained of chronic fatigue, however, he was also experiencing other medical problems such as diabetes mellitus, obesity (weight 241), a ventral hernia, and hyperlipidemia. A 10 pound weight loss in the last year was noted, however, the Veteran reported a fair appetite. He denied any recent hospitalization for chronic liver problems as well as any prior treatment for hepatitis B and hepatitis C infection. He denied symptoms of diffuse muscle and joint pain and anorexia. Lab reports showed that the Veteran's AST level was 25 units and his ALT level was 31 units. Hepatitis A and B surface antibodies were reactive and hepatitis A and B surface antigens were nonreactive. His hepatitis C viral load was less than 615. Diagnostic impression per this examination was an inactive hepatitis C infection and past infection with hepatitis A and B. During the February 2007 DRO hearing, the Veteran testified that his current liver symptoms included stomach pain, vomiting, weight loss (68 pounds in 3 weeks), dizziness, nausea, and tiredness. The Veteran was afforded an additional VA examination in December 2010. His main complaint was "that he had diabetes and tiredness." Lab findings at that time showed that hepatitis C antibody was nonreactive. His AST level was 17 and ALT was 33. His usual occupation was a truck driver, however, he retired in 1985 due to a medical/physical problem of hernias. The examiner diagnosed hepatitis C antibody nonreactive with normal liver enzymes. The Veteran's liver disability with history of hepatitis C affected his usual daily activities in that he felt tired and had to take frequent naps. Immediately thereafter, however, as to impacts on his daily activities of living and employment, the examiner stated that the Veteran does not have active hepatitis C and his liver enzymes are normal. In February 2013, the Veteran underwent an additional VA examination to determine the current severity and functional effects of his service connected disabilities and to determine whether he had a stomach condition with manifestations separate and distinct from manifestations of his service-connected recurrent ventral hernia disability. The claims file was reviewed. It was noted that the Veteran was diagnosed with abdominal hernias with gastroesphageal reflux disease (GERD) in the 1980s. Associated symptoms included nausea, regurgitation, abdominal cramping pain, and constipation. He experienced recurrent episodes of signs or symptoms due to that condition 4 or more times per year. Episodes were periodic, occurred less than monthly, and were unrelieved by standard ulcer therapy. Episodes of recurrent nausea and mild vomiting occurred 4 or more times per year and lasted less than 1 day. There were no incapacitating episodes due to signs and symptoms of any stomach disorder. He did not have peritoneal adhesions following an injury or surgical procedure of the stomach or duodenum. As to the Veteran's service-connected recurrent ventral hernia disability, associated symptoms included abdominal pain and swelling. The examiner opined that specific diagnosis of the Veteran's stomach condition is likely reflux with nausea secondary to recurrent ventral hernias. In April 2013, the Veteran was afforded an examination to determine the nature and severity of his service-connected liver disorder and to obtain an opinion as to whether fatigue is a manifestation of that disorder. The claims file was reviewed and it was noted that the Veteran's diagnosed liver condition was hepatitis C following laceration of his liver that required surgical treatment in 1972. Examination was negative for peritoneal adhesions resulting from injury of his liver. Continuous medication was not required for treatment of the Veteran's liver condition. He did not experience current signs or symptoms attributable to chronic or infectious liver diseases or any kind of cirrhosis of the liver. He had not had any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, arthralgia, and right upper quadrant pain) due to his liver condition in the last 12 months. The examiner noted that a review of the Veteran's chart showed that HCV Ab tests were negative in August 2009, December 2010, and May 2011 and liver function testing had been within normal limits. While remote data revealed history of positive HCV tests on multiple occasions, his HCV RNA had always been undetectable and liver function testing appeared to have always been within normal limits. The examiner stated that the Veteran may have a false positive HCV Ab test and she recommended that RIBA testing be conducted to differentiate false positive HCV Ab verses remote or resolved HCV infection. Either way, she found that the Veteran does not appear to have active HCV and therefore, treatment is not indicated. As there was no evidence of debilitating fatigue, the examiner further opined that the Veteran's complaints of fatigue are due to his non service-connected type II diabetes mellitus and back pain. On review, the Board finds that a rating in excess of the 10 percent evaluation currently assigned for the Veteran's service-connected liver disorder with history of hepatitis C is not warranted at any time since the claim for increase was received in November 2005. The Board acknowledges that the Veteran has intermittently complained of relevant symptoms of hepatitis such as fatigue, malaise, anorexia, nausea, vomiting, arthralgia, and right upper quadrant pain. The Veteran is competent to report such symptoms as they are felt through the senses and do not require laboratory testing or diagnosis by a physician. There is no evidence that he is not credible. However, he is not competent to render an opinion as to the etiology of such symptoms, particularly in light of his multiple and complex service-connected and non service-connected conditions. Layno, 6 Vet. App. 465, at 470; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). To the contrary, VA examiners and contemporaneous VA treatment records indicate that many symptoms are instead manifestations of other service and non-service connected conditions. Specifically, while the December 2010 VA examiner related the Veteran's complaints of fatigue and his need to take frequent naps to his service-connected liver disorder, earlier in the examination report, the examiner noted that the his main complaints included fatigue and diabetes. Also, immediately after relating the Veteran's fatigue to his service-connected liver disorder, the examiner noted that the Veteran did not have an active hepatitis C infection and that his liver enzymes were normal. Thus, the Board finds that the December 2010 examiner's opinion as to the etiology of the Veteran's fatigue to be unclear, internally inconsistent, and of little probative weight. The April 2013 examiner opined that the Veteran's fatigue is associated with his non service-connected conditions of type II diabetes mellitus and back pain. The examiner reasoned that the Veteran has not been shown to have an active hepatitis infection or abnormal liver functioning. This opinion is also consistent with VA treatment records, which show that the Veteran's non service-connected type II diabetes mellitus was uncontrolled on most occasions with the Veteran refusing to check his blood sugar at home and take his prescribed insulin and medication as it made him feel ill. Moreover, complaints of fatigue did not become apparent until a number of years after the Veteran was diagnosed with diabetes in November 2004. Also, VA treatment records show that the Veteran has been prescribed high dosages of multiple narcotic pain medications for pain related to non service-connected back, shoulder and neuropathic conditions. Additionally, the February 2013 examiner specifically related the Veteran's complaints of nausea and vomiting to his service-connected reflux and nausea disability, for which a 10 percent disability rating has been assigned effective the date the claim for increase for a liver condition was received. Similarly, the examiner specifically related complaints of abdominal pain and cramping to the Veteran's service-connected recurrent ventral hernia disability. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As to any reports of anorexia, the Veteran was noted to be mildly obese or obese throughout the duration of the claim and his weight ranged anywhere from the low to mid 200s. As to his reported history of weight loss during the February 2007 hearing, VA treatment records show that in November 2005, he was unable to eat a full meal for 1 month due to abdominal pain associated with his service-connected recurrent ventral hernia. In October 2007, a recent significant weight loss was attributed to the Veteran not eating due to lack of teeth and an inability to chew, as well as his desire to lose weight. On most all occasions, the Veteran's appetite was said to be nothing less than fair and his reported daily meals on follow-up of his diabetes were not reflective of anorexia. Even assuming for the sake of argument that the Veteran's complaints were shown to be related solely to his service-connected liver disorder with history of hepatitis C, intermittent and occasional symptoms do not rise to the level of symptoms contemplated by the rating criteria for the assignment of the next-higher 20 percent evaluation. There is no indication that the Veteran experienced such symptoms on a daily basis. Furthermore, there is no evidence that his symptoms resulted in incapacitating episodes of at least 2 weeks but less than 12 weeks at any time or required dietary restriction or continuous medication. 38 C.F.R. § 4.114, DC 7345. Indeed, the only times that the Veteran's diet was noted to be restricted or diet restriction was recommended was in relation to increased fiber intake due to use of narcotic pain medication and for control of his type II diabetes mellitus. While VA examination reports show that the Veteran reported using narcotic pain medication for treatment of abdominal pain, VA treatment records show that narcotic pain medication was prescribed for treatment of back pain. Also, a July 2011 VA treatment note shows that the Veteran inquired whether medication was available for treatment of his hepatitis C, however, there was no evidence that he had active hepatitis C. The Board acknowledges that a showing of all findings specified is not required in all cases. 38 C.F.R. § 4.21. However, in the present appeal, the disability picture contemplated by the rating criteria for assignment of the next-higher 20 percent evaluation requires that the Veteran experience symptoms that are more severe in degree and of longer duration that merely intermittent symptoms, many of which, that have been attributed to other service and non service-connected disabilities. Significantly, the Veteran presented for physical examination, including review of blood tests on two occasions during the appellate period and was found to be asymptomatic by the examiners. The medical opinions by the VA examiners are credible because they based on a thorough review of the pertinent medical history and available treatment records and the examiners offered reasonable medical bases for their conclusions. Absent credible evidence to the contrary, the Board is not in a position to further question the results of these examinations. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the applicable rating criteria may not serve as a basis for the assignment of an increased rating in the present appeal. 38 C.F.R. § 4.114, DC 7345. The Board has also considered whether an increased rating is warranted under any other potentially applicable diagnostic code. As noted above, however, certain disabilities of the digestive system, such as chronic liver disease without cirrhosis, produce a common disability picture and do not lend themselves to distinct and separate evaluations without violating the fundamental principle relating to pyramiding outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.114. The disability also has not been shown to involve any other factor(s) that warrant evaluating the disability under any other provision(s) of VA's rating schedule. As to the Veteran's assertion that he will forever carry diagnoses of hepatitis, as discussed above, disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. There is no evidence that the Veteran's hepatitis impacts his daily life or ability to work. Extraschedular Consideration Under Thun v. Peake, 22 Vet App 111 (2008), 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 evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation 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 evaluate 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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation currently assigned for the Veteran's service-connected liver disorder with history of hepatitis C. A comparison between the level of severity and symptomatology of the Veteran's liver disorder with history of hepatitis C with the established criteria found in the rating schedule for chronic liver disease with cirrhosis shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers all symptoms reported by the Veteran. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In any event, the Board observes that, even if the available schedular evaluations for the Veteran's liver disability were inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms," nor does he so contend. The Board has been unable to identify an exceptional or unusual disability picture, and neither has the Veteran. The fact that lab testing may forever be reactive for hepatitis antibodies does not constitute any exceptional or unusual disability picture warranting consideration of an extraschedular rating. In short, there is nothing in the record to indicate that the Veteran's service-connected liver disorder with history of hepatitis C causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. For the foregoing reasons, the preponderance of the evidence of record is against the claim for an increased rating for the Veteran's liver disorder with history of hepatitis C, and the benefit-of-the-doubt rule is therefore not for application. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert supra. As the preponderance of the evidence of record is against this claim, it must be denied. ORDER Entitlement to an evaluation in excess of 10 percent for a liver disorder with history of hepatitis C is denied. REMAND Unfortunately, further development is necessary before the Veteran's claim for entitlement to a TDIU may be adjudicated. In November 2012, the Board inferred a claim of entitlement to a TDIU from the representative's October 2012 brief, which suggested that the Veteran's service-connected disabilities and manifestations thereof, especially fatigue, prevents him from obtaining and maintaining substantially gainful employment. The Board remanded this issue for additional development, to include an opinion as to whether solely the Veteran's service connected disabilities preclude him from obtaining substantially gainful employment. As of the date of this remand, the Veteran's service-connected disabilities include a liver disorder with history of hepatitis C (10 percent); multiple ventral hernias with recurrent hernia secondary to liver laceration (0 percent prior to February 6, 2013, and 20 percent thereafter); deep nonlinear scars associated with multiple ventral hernia repairs with recurrent hernia secondary to liver laceration (20 percent since February 6, 2013); and reflux with nausea associated with multiple ventral hernia repairs (10 percent). Following VA examinations in February and April 2013, it was found that neither the Veteran's service-connected liver disorder with history of hepatitis C nor his service-connected scar disability impact his ability to work. The February 2013 examiner did find, however, that the Veteran's service-connected reflux with nausea resulted in mild to moderate occupational impairment due to chronic abdominal discomfort and nausea and his service-connected hernia disability resulted in occupational impairment due to chronic abdominal pain and recurrent abdominal hernias which result in difficulty lifting, pushing and pulling. The February 2013 examiner noted that the Veteran's usual occupation was a truck driver until 1985 and he has a 7th grade education. She opined that the Veteran is less likely to be able to obtain and maintain gainful employment secondary to chronic abdominal pain and recurrent abdominal hernias resulting in difficulty lifting, pushing, and pulling. She stated that he also has non service-connected conditions of diabetes mellitus and back pain, which cause fatigue. It is unclear from the February 2013 examiners opinion pertaining to entitlement to a TDIU whether the Veteran's non service-connected conditions of diabetes mellitus and back pain which cause fatigue were considered in her determination that the Veteran is less likely to be able to obtain and maintain gainful employment. Accordingly, the examination report is inadequate and must be returned for clarification from the February 2013 examiner as to whether solely the Veteran's service-connected disabilities, without regard to non service-connected disabilities, preclude him from maintaining substantially gainful employment. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order); see also Barr, supra.; Stefl, supra.; 38 C.F.R. § 4.2. The RO/AMC should take this opportunity to obtain any ongoing or additional relevant treatment records, VA or non VA, which have not been obtained, to include VA treatment records dating since March 2012. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice as to the information and evidence needed to substantiate his claim for a TDIU. 2. Obtain all outstanding and ongoing pertinent VA medical records, to include any ongoing treatment records dating since March 2012 from the Detroit and Tennessee Valley VAMCs. All records and/or responses received should be associated with the claims file. 3. Request that the Veteran provide and/or request his assistance in seeking any documents such as work evaluations and leave statements from his former employers that tend to support his assertion that his service-connected disabilities interfered with or prevented his occupational performance. The Veteran is invited to present any evidence, particularly medical evidence, which tends to show that he is unable to work solely due to his service-connected disabilities. 4. Thereafter, refer the claims file to the examiner who conducted the February 2013 VA examination and provided a medical opinion concerning the effects of the Veteran's service-connected disabilities on his occupational functioning and request that she provide an opinion for the purpose of clarification. The examiner is to be provided access to the claims folders, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims files and Virtual VA records have been reviewed. The examiner must state whether it is at least as likely as not (50 percent probability or better) that the Veteran's service-connected liver disorder with history of hepatitis C, deep nonlinear scars associated with multiple ventral hernias, multiple ventral hernia repairs with recurrent ventral hernia, and reflux with nausea disabilities, whether alone or in combination, render him unable to secure or follow a substantially gainful occupation for which his education and occupational experience would otherwise qualify him. The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran's contentions. A complete rationale should be provided for any opinion(s) expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 5. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO/AMC must ensure that the examiner documented his or her consideration of Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 6. After the completion of any action deemed appropriate in addition to that requested above, the RO/AMC must readjudicate the claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disability, to include entitlement to an extraschedular evaluation. All applicable laws and regulations should be considered. If any benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity to respond. The Board notes that the Veteran has already perfected an appeal to any denial of individual unemployability. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs