Citation Nr: 1325470 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-21 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial compensable rating for hepatitis B. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1965 to December 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for hepatitis B, rated zero percent disabling. The Veteran appealed the noncompensable rating. The case was remanded by the Board for further development of the evidence in February 2011 and in April 2012 so that a travel board hearing could be scheduled. These were accomplished and in August 2012, a travel board hearing was held before the undersigned in North Little Rock, Arkansas. A transcript of the hearing is associated with the Veteran's claims file. The case was again remanded for further development of the evidence in November 2012. This was accomplished and the case was returned for further appellate consideration. FINDING OF FACT Throughout the appeal, the Veteran's hepatitis B has been shown to be asymptomatic. CONCLUSION OF LAW The criteria for an initial compensable rating for hepatitis B have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code (Code) 7345 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim 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). VCAA 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA 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). As the rating decision on appeal 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. See Dingess 19 Vet. App. at 490. A June 2007 statement of the case (SOC) provided notice on the "downstream" element of initial rating; while an August 2011 supplemental SOC (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations, most recently in January 2013. The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). 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). Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. 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 (2010). Where there is a question as to which of two evaluations 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010). In this case, the Board has considered the entire period of initial rating claim from the grant of service connection in 2001 to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that it 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, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate 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. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (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, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. 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, 1336-1337 (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, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (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); see Barr 21 Vet. App. at 303 (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). 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, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). 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, this 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, i.e., 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. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Hepatitis B Service connection for hepatitis B was granted by the RO in a January 2006 rating decision. The noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 7345 from the date of claim in September 2001. 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. Chronic liver disease that is nonsymptomatic is rated noncompensably (0 percent) disabling. Chronic liver disease 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 disabling. Chronic liver disease 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 disabling. Chronic liver disease 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 disabling. Chronic liver disease 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 disabling. Chronic liver disease with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), is rated 100 percent disabling. 38 C.F.R. § 4.114. Note (1) to Diagnostic Code 7345 provides that sequelae, such as cirrhosis or malignancy of the liver, is to be rated under an appropriate diagnostic code, but not to use the same signs and symptoms as the basis for rating under Diagnostic Code 7354 and under a diagnostic code for sequelae. (See 38 C.F.R. § 4.14). Note (2) provides that, for purposes of rating conditions under Diagnostic Code 7345, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Note (3) provides that hepatitis B infection must be confirmed by serologic testing in order to rate it under Diagnostic Code 7345. 38 C.F.R. § 4.114. 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 elevation. 38 C.F.R. § 4.114. Review of the regulatory criteria outlined above shows that in order for the Veteran to be found to be eligible for a compensable evaluation, the hepatitis must be shown to be symptomatic. Necessary symptoms include fatigue, malaise, nausea, vomiting, anorexia, arthralgia, or right upper quadrant pain that have a total duration of at least one week, during the past 12-month period. After review of the evidence of record, the Board does not find that the Veteran has manifested such symptoms as a result of his service-connected hepatitis B. VA outpatient treatment records dated in 2001 show that the Veteran had a history of hepatitis B, with private treatment records showing a positive test for an acute or past hepatitis infection. In December 2001 he was seen at the VA clinic for complaints of nausea and weakness. Additional symptoms at that time included shortness of breath and difficulty standing. The assessment at that time was of near-syncopal episodes. Private laboratory testing in November 2004 showed liver function studies to be within normal limits. An examination was conducted by VA in January 2006. The Veteran's history of hepatitis in service was reviewed. Examination showed no sclera icterus, no hepatosplenomegaly, masses, or tenderness and no ascites present. On May 2007 VA examination, the Veteran described intermittent daily nausea that did not require medication and stated that he vomited his food twice per week. He also described intermittent fatigue with excertional activities that resolved after approximately one hour of rest. He denied any weight loss, loss of appetite, right upper quadrant pain, liver colic, arthralgias, central nervous system changes, gastrointestinal bleeding or depression. On examination he was noted to be alert and in no distress. Skin was of normal color without icterus. Abdominal examination revealed a soft, nontender abdomen without organomegaly or tenderness. Liver span was 9 cm and not enlarged. There was no extremity color change or edema. Laboratory testing showed normal liver function. The diagnostic impression was viral hepatitis B, inactive. On March 2011 VA examination, the Veteran's medical records were reviewed by the examiner who stated that there was no evidence of any active or chronic hepatitis. Weight was stable, but the Veteran did state that twice per week he had a spell of nausea, weakness, and occasional vomiting. He stated that he would have to lie down for about 30 to 45 minutes after which he felt perfectly normal. These occurred about twice per week. He did not have abdominal pain or ascites. There was no right upper quadrant pain, arthralgias or gastrointestinal symptoms. He did have gastroesophageal reflux, with nocturnal pyrosis for which he was on medication. Examination showed the abdomen to be soft with active bowel sounds. There was no tenderness, no masses, and no ascites detected. The spleen was not enlarged. There was no evidence of sclera icterus and no jaundice. The diagnosis was remote hepatitis B infection with no evidence of chronic or active hepatitis. The examiner rendered an opinion that the Veteran's gastrointestinal complaints were less likely than not related to his hepatitis B and that the symptoms of gastroesophageal reflux were also not related to hepatitis B. An examination was conducted by VA in January 2013. At that time, the diagnosis was hepatitis B only. There was no diagnosis of another liver disability. It was noted that the Veteran had not had any treatment for hepatitis and that liver function studies had been normal for years. The Veteran did have complaints of fatigue, nausea, and vomiting, but not malaise, anorexia, arthralgia, or weight loss. There were no incapacitating episodes due to the liver condition during the past year. Current liver function testing was normal. The examiner stated that there was no evidence of active liver disease and that the Veteran's complaints of fatigue were due to the need to take care of his spouse, who was ill; and the nausea and vomiting was most likely due to gastroesophageal reflux disease (GERD). The examiner did not find that the Veteran had any symptoms of liver disease, with liver function testing being normal for many years and the hepatitis B felt to be quiescent. There was no evidence of long term residuals of the Veteran's original hepatitis infection. While the Veteran has had complaints of nausea, fatigue and vomiting, these were not medically found to be related to service-connected hepatitis. It is important to note the examiner's opinions that the hepatitis has been asymptomatic for many years; opinions were supported by the normal levels of liver function that has been consistently shown on laboratory testing. The symptoms that could be attributable to hepatitis are shown to have other causes. As the examinations of record show no symptoms of hepatitis, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a higher initial rating for hepatitis B, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability 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) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 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. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's hepatitis directly corresponds to the schedular criteria for the 0 percent evaluation as it is demonstrated throughout the appeal as asymptomatic. For this reason, the Board finds that the assigned schedular rating is adequate to rate the Veteran's hepatitis B, and no referral for an extraschedular rating is required. Finally, the Veteran's service-connected disabilities, which include post traumatic stress disorder (PTSD), rated 30 percent disabling and residuals of a shell fragment wound (SFW) of the left distal thigh and a right 5th toe scar, combine to a 30 percent rating and do not meet the schedular criteria for consideration of a total disability rating by reason of individual unemployability. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Neither does the Veteran or the evidence suggest that the Veteran is unemployable by reason of his service-connected disabilities (TDIU). On examination in January 2013 it was specifically noted that the Veteran's hepatitis did not interfere with employability. Consequently, the matter of entitlement to TDIU is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial compensable rating for hepatitis B is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs