Citation Nr: 1324799 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 12-18 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to an initial disability rating higher than 10 percent for Hepatitis C. REPRESENTATION Veteran represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to August 1974. On August 31, 2009, he filed a claim of entitlement to service connection for Hepatitis C. In December 2009 the Department of Veterans Affairs (VA) Regional Office (RO) denied his claim, and in response he initiated a timely appeal by filing a Notice of Disagreement (NOD) in January 2010. After electing a de novo review of the claim, however, a local Decision Review Officer (DRO) at the RO issued in an April 2011 decision granting the claim for service connection for Hepatitis C and assigning an initial 0 percent (i.e., noncompensable) rating for it retroactively effective from August 31, 2009, the date of receipt of the claim for this disease. The Veteran then in response filed another NOD in July 2011, this time however requesting a higher initial rating for this now service-connected disability. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). See also Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others.). In yet another decision since issued in July 2012, the RO increased the initial rating for the Hepatitis C from 0 to 10 percent as of August 31, 2009, so retroactively effective from the date of receipt of the underlying claim for service connection. A Statement of the Case (SOC) issued just a few days later in July 2012 denied an even higher initial rating for the Hepatitis C, meaning an initial rating higher than 10 percent. The Veteran then in response filed a Substantive Appeal (VA Form 9), also in July 2012, completing the steps necessary to perfect his appeal of this downstream claim to the Board of Veterans' Appeals (Board/BVA). As support for his claim, in June 2013 he testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). During the hearing he submitted additional medical evidence concerning the severity of his Hepatitis C and waived his right to have the RO initially consider it, preferring instead to have the Board consider this additional evidence in the first instance. 38 C.F.R. §§ 20.800, 20.1304 (2013). Also during the hearing, he testified that he had not worked at all since about October or November 2011, so in the last two or so years, because of chronic fatigue on account of his Hepatitis C. He indicated that, before then, he had had his own business. He gave similar indication during his March 2011 VA compensation examination just a relatively few short months earlier that his ability to work was steadily declining, reporting that he had had to reduce his work from full to part time because of the fatigue from his Hepatitis C. His statements and hearing testimony raise the additional issue of his potential derivative entitlement to a total disability rating based on individual unemployability (TDIU). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that VA must address the issue of entitlement to a TDIU in an increased-rating claim when the issue of unemployability either is raised expressly or by the record. A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability)); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met). Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability. Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim. But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Thus, under Rice and this line of precedent cases, the Board has authority to assume jurisdiction over this derivative TDIU claim inasmuch as it is at least partly predicated on the service-connected disability for which the Veteran is requesting a higher rating in this appeal. VA's Office of General Counsel has indicated that remanding the derivative TDIU claim in this circumstance does not preclude the Board from going ahead and deciding the claim for a higher rating for the disability forming the basis of the TDIU claim. See VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). Here, though, when specifically asked during his hearing whether he was additionally claiming entitlement to a TDIU, the Veteran and his representative responded they were not, only instead alleging entitlement to a 100 percent schedular rating for the Hepatitis C under the applicable Diagnostic Code 7354 rather than on the basis of unemployability, if not at least a 60 percent rating for this disability initially. See June 2013 Travel Board Hearing transcript, page 4. Therefore, a derivative claim of entitlement to a TDIU is not being considered as part and parcel of the determination of whether a higher initial rating is warranted for the Hepatitis C, even though the Veteran alleges the Hepatitis C is the reason he is no longer working. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Because of his Hepatitis C, the Veteran has chronic fatigue, malaise, joint pain and swelling, nausea, weight loss, and 12 weeks of time lost from work. CONCLUSION OF LAW The criteria are met for a higher 60 percent initial rating for the Hepatitis C, though no greater rating. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7354 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified in part at 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will obtain; and (3) inform the claimant of the information and evidence he is expected to provide. The Court held in Pelegrini v. Principi, 18 Vet. App. 112 (2004), that to the extent possible the VCAA notice should be provided to the claimant before an initial unfavorable decision on the claim. Pelegrini at 119-20. If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in an SOC or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, prior to the initial adjudication of the Veteran's claim for service connection for Hepatitis C in the December 2009 rating decision, he was provided notice of the VCAA in September 2009. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim and the division of responsibility between him and VA in obtaining the necessary supporting evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. He also received additional notice in September 2009 concerning the "downstream" disability rating and effective date elements of his claim, in the eventuality service connection was granted, which, although not at first, it indeed later was in the DRO's April 2011 decision after a de novo review of the claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). If, as here, service connection is granted and, in response, the Veteran appeals a "downstream" issue such as the compensation level assigned for the disability or effective date, then VA does not have to provide additional VCAA notice concerning these downstream elements of the claim because the initial intended purpose of the notice has been served inasmuch as the claim as it arose in its initial context has been granted, so substantiated. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this occurred in this particular instance. Shortly after increasing the initial rating for his Hepatitis C in July 2012 from 0 to 10 percent, as of the same retroactive effective date of August 31, 2009, the RO provided the Veteran the required SOC later in July 2012 citing the applicable statutes and regulations governing the assignment of disability ratings and containing discussion of the reasons or bases for assigning the higher 10 percent initial rating but no greater rating. He therefore has received all required notice concerning his claim. And as concerning the duty to assist him with his claim, all relevant evidence necessary for an equitable resolution has been identified and obtained, to the extent possible. The evidence of record includes his VA outpatient treatment reports, a letter from a VA physician, the report of a VA compensation examination, as well as personal statements and testimony from the Veteran and his representative. The March 2011 VA examination reports reflect that the examiner reviewed the Veteran's pertinent medical history, documented his then current medical condition, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record and, most importantly, with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes the examination is adequate for rating purposes, that is, such that additional examination is not needed. 38 C.F.R. §§ 3.327(a), 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). In June 2013 the Veteran had a hearing at the RO before the undersigned Veterans Law Judge of the Board. The transcript of the proceeding reflects that the presiding Veterans Law Judge conducted the hearing in accordance with the regulatory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), and as explained by the Court in Bryant v. Shinseki, 23 Vet. App. 488 (2010). The transcript of the hearing reflects that the presiding Veterans Law Judge identified the material issue - whether an initial rating higher than 10 percent is warranted for the Hepatitis C. The presiding Veterans Law Judge also discussed with the Veteran and his representative what his symptoms of Hepatitis C were, their severity, treatment for the disease, and its effects on his employment. Thus, the Board finds that the hearing officer's duties in 38 C.F.R. § 3.103(c)(2) were met and that the Veteran was not prejudiced by the conducting of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). Indeed, during the hearing the Veteran submitted additional medical evidence tending to show he is entitled to a higher initial rating for his Hepatitis C, and in submitting this additional evidence - especially as it addresses the specific rating criteria used to evaluate the extent and severity of his service-connected disability - he evidenced his actual knowledge of the type of evidence and information needed to substantiate this claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). He has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication there exists any additional evidence that has a bearing on this claim that has not been obtained. He and his representative have been provided ample opportunity to present evidence and argument in support of this claim, and all procedural due process requirements have been met. See 38 C.F.R. § 3.103 (2012). Governing Statutes, Regulations and Precedent Cases Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. When a Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). So to this end, the Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, as it is here, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of a "staged" rating is required. Fenderson v. West, 12 Vet. App. at 125-26. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as a "staged" rating. Id. The analysis of this claim therefore is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's Hepatitis C has been evaluated under the provisions of 38 C.F.R. § 4.114, DC 7354. Under this code, a noncompensable (i.e., 0 percent) rating is assigned for asymptomatic Hepatitis C. A 10 percent rating is assigned for Hepatitis C with symptoms such as 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. A 20 percent rating is warranted 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. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12- month period. A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. And a 100 percent rating is warranted when there is serologic evidence of Hepatitis C infection and the following signs and symptoms due to the Hepatitis C infection: near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). According to Note (1) in this DC, evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate DC, but do not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a DC for sequelae. Id. See also 38 C.F.R. § 4.14 (VA's anti-pyramiding regulation). Note (2) explains that, for purposes of evaluating conditions under DC 7354, an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. Analysis Based on his and his representative's statements and hearing testimony, the Veteran believes that at the very least a higher 60 percent initial rating is warranted for his Hepatitis C, if not an even greater 100 percent rating. See, e.g., their June 2013 Travel Board hearing testimony. During the March 2011 VA compensation examination, the Veteran reported that the course of his Hepatitis C since its onset had been progressively worse. He also stated that he had opted out of antiviral treatment over the past decade as his heptologist at the VA Medical Center (VAMC) in Boston had advised him that his genotype of hepatitis 1b had some poor treatment outcomes with conventional treatment. He acknowledged however not having had any incapacitating episodes in the last 12-month period, although he later reported having missed 12 weeks of work primarily because of his fatigue. Physical examination revealed no weight change, a normal abdominal examination, no evidence of portal hypertension or signs of liver disease and no hepatospleenomegaly. The examiner indicated the evaluation, on the whole, was normal, though an abdominal ultrasound from 2008 and laboratory tests from March 2009 were reiterated in the report. The Veteran indicated he was then currently employed, part time, as a consultant and that he had lost 12 weeks of work in the last 12-month period and that he had had to cut back on work hours from full time to part time because of increasing fatigue in the past several years. He was assessed with having Hepatitis C, genotype 1B. In a June 2011 VA outpatient treatment report, the Veteran's treating physician at the VAMC, Dr. S.V., M.D. (Dr. S.V.), pointed out the Veteran's Hepatitis C test was very high at 6.91 million and that she believed his symptoms were likely due to the Hepatitis C, which was more active now than it had been. While results of laboratory testing were included in that report, there were no symptoms of Hepatitis C specifically noted or discussed. In a June 2013 letter, Dr. S.V. indicated the Veteran had been her primary care patient since 1997 at the VAMC in Boston. She observed that in the last two to three years the effects of his Hepatitis C had severely limited his ability to work and earn income. She found that, due to the effects of this disease, he had had to sell all of his belongings and was now having severe financial difficulties as a consequence. She also stated that the hope of increasing his disability benefits may enable him to participate in treatment for his Hepatitis C, improve his symptoms and enable him to work again. She concluded he truly wanted to work again. The Veteran testified during his June 2013 Travel Board hearing that his symptoms of Hepatitis C included fatigue, malaise, nausea, weight loss of 20 pounds in the past two years, joint pain and swelling and the use of continuous medication, specified as AIDS medication, for his litany of symptoms. His representative noted the Veteran had not worked due to fatigue in the past two years and that he earlier had indicated during his March 2011 VA compensation examination the detrimental effect, especially his fatigue, was having on his ability to continue working - at least on a full-time basis as compared to just part-time instead. He also reported that the Veteran's symptoms had intensified over the last two to three years, as confirmed by his VA primary care physician that had provided supporting comment. The Veteran said his fatigue had gotten so bad that he could no longer continue working since around October or November 2011. Based on this collective body of evidence, the Board finds that his Hepatitis C meets the requirements for a higher 60 percent initial rating under DC 7354, though not an even greater 100 percent rating under this code. In this regard, the Board observes that the probative lay and medical evidence of record demonstrates that his Hepatitis C is (and has been in years past, dating back to the receipt of his claim for this condition) causing chronic fatigue, malaise, joint pain and swelling, nausea, weight loss, and 12 weeks of time lost from work, indeed if not now more. He reported the 12 weeks of time lost from work primarily on account of his fatigue while undergoing his March 2011 VA compensation examination, and his statements and testimony, when construed liberally so in a light most favorable to his claim, are tantamount to an incapacitating episode having a total duration of 12 weeks during a past 12 month-period, but not occurring constantly. See 38 C.F.R. § 4.114, DC 7354. The relevant case law has directed that, when it is not possible to distinguish or discern the effects of a nonservice-connected disorder from a service-connected one, VA must attribute such effects to the service-connected disorder. See Howell v. Nicholson, 19 Vet. App. 535 (2005); Mittleider v. West, 11 Vet. App. 181 (1998). In this case, the record indicates the Veteran's most prominent symptom of Hepatitis C includes his daily fatigue which has contributed to his incapacitating episodes. Thus, the Board finds that his report during his March 2011 VA examination of 12 weeks of time lost from work due to fatigue clearly falls within the criteria for a 60 percent disability rating under DC 7354, which is assigned for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. See 38 C.F.R. § 4.114, DC 7354. Even as a layman, he is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing fatigue, pain, having to miss work. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). His statements concerning this also are credible, so ultimately probative, especially since consistent with the other evidence in the file - including especially the statements from his VA primary care physician. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). See, too, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence.). Therefore, particularly when resolving all reasonable doubt in his favor, the Board finds that his Hepatitis C more nearly approximates the 60 percent rating criteria under DC 7354, so this is the rating that must be assigned. 38 C.F.R. §§ 4.3, 4.7. He is not shown to be entitled to an even higher 100 percent rating under DC 7354, however, despite his representative's assertions during the recent June 2013 Travel Board hearing. In this regard, the Board points out that the record is wholly absent of any complaints or findings indicating his symptoms have been both near-constant and debilitating, which are required for an even higher disability rating. See id. In fact, the Veteran has not attested to the frequency of his fatigue or his other reported symptoms, although the evidence indicates fatigue occurred more than intermittently and impaired his employment. In addition, the medical evidence of record, including the report of his March 2011 VA examination, the June 2011 VA outpatient treatment report, and the June 2013 VA physician's letter, does not reflect that any Hepatitis C symptoms were of near constant frequency and were so severe as to be considered debilitating. 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 DC does not always require all criteria to be met, except in the case of DCs 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 applicable DC, indicating symptoms must be both near constant and debilitating. 38 C.F.R. § 4.114, DC 7354; 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). Therefore, the Veteran's Hepatitis C does not meet or more nearly approximate the criteria for a disability rating higher than 60 percent under DC 7354. Thus, the Board finds that an even higher evaluation (meaning a 100 percent rating) is not warranted. Extra-schedular Consideration Additionally, the Board finds that at no point has this disability been so exceptional or unusual as to warrant the assignment of an even higher rating for it on an extra-schedular basis. See 38 C.F.R. § 3.321. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). But the question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the Rating Schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the Rating Schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this particular case at hand, the Board finds that the schedular criteria are adequate to rate the disability under consideration. The Rating Schedule fully contemplates the described symptoms (e.g., chronic fatigue, etc.), and provides for ratings higher than that assigned based on more significant functional impairment. The even higher 100 percent rating criteria of DC 7354 indicates that the symptoms of the Hepatitis C must be near constant and debilitating to award a higher 100 percent schedularr rating, which are successive and based on symptoms of increased frequency and severity, which, as discussed above, is not the case here. This matter was implicitly considered and rejected by the RO. See the SOC, dated in July 2012, citing 38 C.F.R. § 3.321(b)(1). Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A higher initial rating of 60 percent, though no greater rating, for the Hepatitis C is granted, subject to the statutes and regulations governing the payment of VA compensation. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs