Citation Nr: 1328557 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 08-22 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating prior to April 12, 2013, and a rating in excess of 10 percent since April 12, 2013, for hepatitis A and B. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from October 1965 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2012, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. During that April 2012 hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2012). In January 2013, the Board remanded the Veteran's claim for a compensable rating for hepatitis A and B for further development. A May 2013 rating decision increased the rating from 0 percent to 10 percent for hepatitis A and B, effective April 12, 2013. However, as that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. Prior to April 12, 2013, the Veteran's hepatitis A and B was manifested by subjective complaints such as fatigue and nausea, without objective findings of malaise, anorexia, decrease in liver function, or hepatomegaly. 2. Since April 12, 2013, the Veteran's hepatitis A and B has been manifested by complaints of fatigue and malaise and an incapacitating episode that lasted one week during the past 12-month period, but has not been shown to be productive of anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. CONCLUSIONS OF LAW 1. Prior to April 12, 2013, the criteria for a compensable rating for hepatitis A and B are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321, 4.1, 4.114, Diagnostic Code 7345 (2012). 2. Since April 12, 2013, the criteria for a rating in excess of 10 percent rating for hepatitis A and B are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Code 7345 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service- connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. In this case, prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to an increased rating for his service-connected hepatitis in a notice letter sent in July 2009. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim. The RO further described what evidence that the Veteran should provide in support of his claim. Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. Regarding VA's statutory duty to assist in claims development, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the hepatitis claim. Pertinent medical evidence associated with the claims files consists of service and VA treatment records, private treatment records, records from the Social Security Administration (SSA) and the medical reports of VA examinations conducted in June 2008, April 2009, and July 2009. In addition, pursuant to the Board's January 2013 remand the Veteran was afforded a VA hepatitis, cirrhosis and other liver conditions Disability Benefits Questionnaire (DBQ) examination in April 2013. A review of this report of examination reflects that all subjective and objective findings necessary for evaluation of the Veteran's claim were observed and recorded. Thus, the examination appears to be complete and adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that VA substantially complied with the Board's remand directives in further developing the Veteran's claim. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Also of record and considered in connection with the appeal are various statements submitted by the Veteran and his representative, on his behalf. As noted above, the Veteran was provided with a Board hearing in April 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the provisions of 38 C.F.R. § 3.103(c) (2) (2012) require that the hearing officer who chairs a hearing fulfill two duties to comply with the above 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. The Board finds that both duties were met during the hearing. It was clear during the hearing that the Veteran had a full understanding of the issue on appeal. The undersigned Acting Veteran's Law Judge specifically explained to the Veteran that medical evidence of worsening symptomatology would be the type of evidence helpful to his claim. The Veteran indicated that he had received recent VA treatment the records of which have been associated with the Veteran's electronic claims file. For the above reasons, the Board finds that, consistent with Bryant, VA has complied with the duties set forth in 38 C.F.R. § 3.103 (c) (2) and that the Board can adjudicate the claim based on the current record. It must be noted that neither the Veteran nor his representative have asserted that VA failed to comply with the provisions of 38 C.F.R. § 3.103(c) (2) nor identified any prejudice in the conduct of the Board hearing. Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. Therefore, in view of the foregoing, the Board will proceed with appellate review. Accordingly, the Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In a July 2008 decision, the RO granted the Veteran's claim for service connection for hepatitis A and B and assigned a 0 percent initial evaluation from May 22, 2006 (the date of receipt of the Veteran's service connection claim) under Diagnostic Code 7399-7345. In July 2008, he filed a claim for a higher rating. By a May 2013 rating decision, the RO increased the rating from 0 percent to 10 percent for hepatitis A and B, effective April 12, 2013 (the date of the VA examination that showed a worsening of the Veteran's disability). Under Diagnostic Code 7399-7345, "99" in the first four digits indicates that the Veteran's disability is not listed in the Schedule for Rating Disabilities, while 73 indicates that it is related most closely to the listed digestive disabilities. See 38 C.F.R. § §§ 4.20, 4.27. Chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, auto-immune hepatitis, hemachromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C), the subject of Diagnostic Code 7345, is the disability found to be most analogous. Diagnostic Code 7345 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. Under DC 7345, a 10 percent evaluation requires that there is intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent evaluation 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. A 40 percent evaluation 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. A 60 percent evaluation 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. 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) defines an "incapacitating episode" as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. On VA liver, gall bladder, and pancreas examination in June 2008, the examiner noted the presence of antibodies to hepatitis A and B which was evidence of a past infection with hepatitis A and B virus. However, the Veteran had normal liver functions and no apparent residuals of hepatitis A and B at that time. VA treatment records include an October 2008 report which shows that the Veteran denied any fatigue. A November 2008 report indicates that there was no evidence to suggest a residual of hepatitis and examination of the liver was unremarkable. SSA records include an October 2008 disability determination which shows that the Veteran was awarded benefits due to coronary artery disease with a secondary diagnosis of a history of prostate problems. An October 2008 private internal medicine examination report indicates a history of hepatitis B and notes that the Veteran denied "any history of vomiting of blood or jaundice" since his service. One particular blood test indicated a positive chore antibody for hepatitis B while another test was negative. At that time, the Veteran denied any weight loss. On VA liver, gall bladder, and pancreas examination in April 2009, the examiner stated that the Veteran had no symptoms related to liver disease and was on medications for his liver. There were no incapacitating episodes during the last 12-month period. A September 2008 ultrasound of the right upper quadrant was unremarkable. Additional clinical findings indicated past infection with hepatitis A and B viruses with resolution and no evidence of chronic liver disease. The examiner diagnosed hepatitis A and B infections in 1966 without evidence of chronic liver disease. There were no effects on the usual daily activities or any functional impairment due to the service- connected hepatitis A and B. The VA QTC examiner further noted that the Veteran's hepatitis A and B did not impair physical and sedentary employment and that he had not worked since he had a heart attack in June 2008. On VA QTC examination in July 2009, the Veteran indicated that hepatitis A and B affected general body health and maintained that he suffered with irregularity, had a lower body resistance, and a "low" immune system. The condition did not affect his body weight. The liver condition reportedly caused easy fatigability, nausea, vomiting, and jaundice. However, it did not cause gastrointestinal disturbances, loss of appetite, or arthralgia. He reported no abdominal pain. Symptoms from the liver condition occurred near-constantly and were tolerable. The Veteran stated that his liver condition did not cause incapacitation and only once had a black tarry stool; bleeding did not cause anemia. He did not require any abdominal tapping for his liver condition. The liver condition had not caused a coma or periods of confusion and there was no history of liver transplant. At that time he was not receiving any treatment for the condition. He reported that he did not experience any overall functional impairment from this condition. The examiner diagnosed asymptomatic hepatitis A and B with a subjective history of episodes of fatigue. The examiner observed that the Veteran did not have any other liver problems such as chronic hepatitis, liver malignancy, or cirrhosis. The effect of the condition on his usual occupation was occasional episodes of fatigue that required him to rest. The effect of the condition on his daily activities was fatigue that limited his activities. In April 2012, the Veteran testified that medications prescribed for treatment of his hepatitis caused constipation and testified that he had experienced hives. In addition, the Veteran submitted a letter from his private physician noting that the Veteran was seen for hives in March 2012. The private physician noted that the Veteran had allergies that could trigger urticaria and that hepatitis could also trigger urticaria. On VA hepatitis, cirrhosis, and other liver conditions DBQ examination in April 2013, the Veteran presented with complaints of irregular bowel movements, bloating, constipation, difficulty digesting, and had 2 to 3 episodes of fatigue and malaise lasting one day depending on his bowel movement and his diet. He also had vesicular rashes 2 to3 times per month. However, no rashes were noted on examination. He did not require continuous medication for control of his liver conditions, but had signs or symptoms attributable to chronic or infections liver disease, including intermittent fatigue, malaise, and arthralgia. It was noted that he had incapacitating episodes due to the liver conditions during the past 12 months lasting less than one week. There were no signs or symptoms attributable to cirrhosis. He had not undergone any liver transplant. An abdominal X-ray examination was unremarkable. The liver condition did not impact his ability to work. The examiner stated that she reviewed the March 2012 private letter noting that hepatitis can trigger urticaria, but stated that no convincing evidence exists that the hepatitis virus infection causes chronic urticaria and opined that the hives described in the letter are "less likely secondary to hepatitis B." Records electronically stored in the Virtual VA system dated from November 2011 to April 2013 do not indicate treatment of or complaints or symptomatology related to the Veteran's hepatitis A and B. The Board finds that the Veteran is not entitled to a compensable disability rating in for the period prior to April 12, 2013, for hepatitis A and hepatitis B. In this regard, the record is negative for any findings or complaints of intermittent fatigue, malaise, and anorexia, or incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12- month period. In fact, on VA examination in April 2009 no evidence of chronic liver disease was found and in July 2009, the examiner diagnosed asymptomatic hepatitis. Therefore, the Board finds that the medical evidence does not support a compensable rating for the Veteran's service- connected hepatitis A and B for the period prior to April 12, 2013, as his overall symptomatology more nearly approximates the criteria for a noncompensable rating. The Board further finds that the Veteran is not entitled to a disability rating in excess of 10 percent for the period beginning April 12, 2013, for hepatitis A and B. In this regard, on VA examination in April 2013 the Veteran complained of intermittent fatigue, malaise, and arthralgia. He had incapacitating episodes due to his liver condition during the past 12-month period that lasted less than one week and the examiner noted that he did not require dietary restriction or continuous medication. In addition, there is no evidence that the Veteran's claimed hives are related to his hepatitis A and B which would warrant the assignment of a separate rating for hives. Therefore, the Board finds that the medical evidence does not support a disability rating higher than 10 percent for the Veteran's service- connected hepatitis A and hepatitis B during the period since April 12, 2013, as his overall symptomatology more nearly approximates the criteria for a rating of 10 percent. Additional Considerations In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. complaints of fatigue and malaise due to hepatitis A and B. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of his disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings and opinions provided by the expert of record should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, there has been no showing that the Veteran's hepatitis A and B could not be contemplated adequately by the applicable schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether any disability on appeal requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Finally, it has been held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must also be evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Here, the Board finds that the holding of Rice is not applicable, as the evidence of record does not demonstrate that the Veteran has been rendered unemployable due to his service-connected hepatitis A and B, nor has the Veteran or his representative so alleged. In fact, during the April 2009 VA examination, the examiner specifically stated that the Veteran had not worked since his June 2008 heart attack. In light of the foregoing, the Board finds that the claim for a compensable rating prior to April 12, 2013, and a rating in excess of 10 percent since April 12, 2013 for hepatitis A and B must be denied. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered additional staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. ORDER Disability ratings in excess of 0 percent prior to April 12, 2013, and in excess of 10 percent from April 12, 2013, for hepatitis A and B, are denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs