Citation Nr: 1331607 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 10-11 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement an increased disability rating (evaluation) in excess of 20 percent for hepatitis C with cirrhosis. 2. Entitlement to an effective date earlier than December 16, 2008 for the assignment of a 20 percent disability rating for hepatitis C with cirrhosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from August 1971 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon. In the February 2009 rating decision, the RO assigned a 20 percent disability rating for the service-connected hepatitis C and assigned an effective date of December 16, 2008. The Veteran entered a notice of disagreement with the assigned rating disability evaluation and the effective date assigned for the 20 percent disability evaluation, and perfected an appeal on both issues. FINDINGS OF FACT 1. For the entire rating period, the service-connected hepatitis C has been manifested by daily fatigue, without objective findings of malaise, anorexia, or hepatomegaly; beneficial weight loss is not attributable to hepatitis C; incapacitating episodes having a total duration of at least four weeks during any twelve-month period have also not been demonstrated. 2. The cirrhosis of the liver, as sequelae to his hepatitis C, caused portal hypertension and varices, but did not cause splenomegaly, anorexia, malaise, or minor weight loss. 3. In a September 2005 rating determination, the RO granted service connection for hepatitis C and assigned a noncompensable disability evaluation effective September 3, 2004; the Veteran was notified of this decision in September 2005; in July 2006, the Veteran filed a notice of disagreement with the assigned disability evaluation; a statement of the case was issued in May 2007; the Veteran he did not perfect an appeal nor was any other evidence received within the one year period after the rating decision which would have allowed the claim to remain open. 4. No further correspondence was received from the Veteran with regard to hepatitis C until December 16, 2008, when he requested a higher disability rating for hepatitis C. 5. The RO, in a February 2009 rating determination, increased the Veteran's disability evaluation for his hepatitis C from noncompensable to 20 percent disabling, with an effective date of December 16, 2008, the date of receipt of the Veteran's claim for an increased rating. 6. It is not factually ascertainable that hepatitis C increased in severity in the one year period prior to December 16, 2008. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for hepatitis C with cirrhosis have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.114, Diagnostic Codes 7312, 7354 (2013). 2. An effective date earlier than December 16, 2008 for the award of a 20 percent rating for hepatitis C is not warranted. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The U.S. Court of appeals for Veterans Claims (Court) has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VCAA notice letter sent in January 2009 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information on disability ratings and effective dates required by Dingess. The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, a VA examination report, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant as it relates to his hepatitis C. The Veteran was afforded VA examinations in February 2009. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be adequate for rating purposes. The Board notes that the Veteran's representative, in an August 2013 written argument, wrote that, if a higher disability evaluation could not be assigned, the Veteran should be afforded a VA examination, as the last examination afforded the Veteran occurred in February 2009. The implication is that, because of the mere passage of time, a new VA examination should be conducted. With regard to this contention, the Board notes that the language of the representative's request for a new VA examination does not include a factual assertion of worsening of the Veteran's hepatitis C or cirrhosis, as it does not indicate that the underlying disability, or even symptoms or manifestations of hepatitis C, have worsened. It is only the representative, not the Veteran, who implies, but does not even assert, a worsening of the hepatitis C since the 2009 VA examination. The representative does not point to any statement or report of symptoms by the Veteran or any medical or other evidence of record that suggests worsening. The context of the representative's statement is the evidence, including treatment records, that does not show, or even suggest, worsening of hepatitis C since the last VA examination in February 2009. The mere fact of treatment for hepatitis C and/or cirrhosis would not show worsening of the disability in this case where the disability had existed for many years. As analyzed in this decision, there is sufficient medical evidence to decide this claim, and such evidence does not show worsening of hepatitis C since the last VA examination. The February 2009 VA examination provided a thorough review of the history and current findings pertaining to the hepatitis C and the more recent VA treatment records reveal no complaints or reports of worsening of symptoms of hepatitis C/cirrhosis. For these reasons, the Board finds that the representative's implied assertion of factual worsening of hepatitis C, which is only implied and not expressly stated in the August 2013 appellant's brief, is not only unsupported by, but is outweighed by, the competent evidence that is of record that shows no worsening of the hepatitis C/cirrhosis disability since the last VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). As there is no evidence of worsening of hepatitis C since the last VA examination in February 2009, or assertion of worsening, a remand for another VA examination is not warranted, and is not required by the VCAA. On the earlier effective date issue, the earliest possible date permitted by the effective date regulations has been granted, so that an earlier effective date is not legally possible. In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. The Board notes that the Veteran was notified of the information and evidence necessary to substantiate a claim for an earlier effective date on numerous occasions, including by way of letters, the issuance of statements and supplemental statements of the case, and written arguments provided by both the Veteran and his representative throughout the course of the appeal. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and by being afforded the opportunity to appear at a hearing if so desired. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Increased Rating for hepatitis C with Cirrhosis Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In this case, the Board has considered all the evidence of record, lay and medical, as it bears on the issue of rating. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation). 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. 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. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code (DC) 7354, a 10 percent evaluation is warranted where hepatitis C is productive of 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 hepatitis C manifested by 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 40 percent disability rating is warranted for hepatitis C manifested by 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 having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is warranted for hepatitis C with serologic evidence of hepatitis C infection and near-constant debilitating symptoms due to the hepatitis C infection. Note (1) to DC 7854 states that sequelae, such as cirrhosis or malignancy of the liver should be evaluated under an appropriate diagnostic code, but the same signs and symptoms should be used as the basis for evaluation under DC 7354 and under a diagnostic code for sequelae. Note (2) states that, for purposes of evaluating conditions under diagnostic code 7354, "incapacitating episodes" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Cirrhosis as a sequelae of hepatitis C is rated as 100 percent disabling when it causes generalized weakness, substantial weight loss, and persistent jaundice, or with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent disability rating is assigned for cirrhosis when there is a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy, but with periods of remission between attacks. A 50 percent disability rating is assigned for cirrhosis when there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. A 30 percent disability rating is assigned when there is portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise and at least minor weight loss. A 10 percent disability rating is assigned when there are symptoms such as weakness, anorexia, abdominal pain and malaise. 38 C.F.R. § 4.114, Diagnostic Code 7312. For rating under diagnostic code 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114 , Diagnostic Code 7312, Note 1. The Veteran maintains that the symptomatology associated with his hepatitis C and its resulting residual of cirrhosis warrants a rating in excess of 20 percent. He maintains that his current hepatitis C and resulting cirrhosis cause fatigue, malaise, weight loss, pain in the chest and legs, joint and muscle discomfort, and impacts the ability to work on a full-time basis. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an increased rating in excess of 20 percent for service-connected hepatitis C and resulting cirrhosis of the liver, for the entire increased rating period on appeal. For the entire rating period, the Veteran's service-connected hepatitis C was manifested by daily fatigue; however, there were no objective medical findings of malaise, anorexia, or hepatomegaly, or incapacitating episodes having a total duration of at least four weeks during any twelve-month period as is required for an increased evaluation under DC 7354. As to cirrhosis of the liver, as a residual of the hepatitis C, while it was noted to cause portal hypertension and varices, it has not been shown to cause splenomegaly, anorexia, malaise, or minor weight loss attributable to cirrhosis of the liver, as is required for either 10 or 30 percent disability evaluation under DC 7312. Treatment records obtained in conjunction with the claim for increase reveal that, at the time of a January 2008 outpatient visit, the Veteran was diagnosed with cirrhosis of the liver. A March 2008 CT scan revealed early changes of cirrhosis and portal hypertension without findings to suggest development of hepatocellular carcinoma. An EGD performed in April 2008 revealed "very minor esophageal varices that did not merit banding." At the time of a September 2008 visit, the Veteran was found to be in no acute distress. At the time of a December 2008 VA outpatient visit, the Veteran was noted to have hepatitis C and cirrhosis. He was doing well and had no complaints referable to the liver. His appetite was good and his energy level was adequate. There were no infectious symptoms present. At the time of a January 2009 outpatient visit, the Veteran was noted to have evidence of cirrhosis and portal hypertension along with small varices. He did not appear to be at high risk of bleeding. At the time of a February 2009 VA examination, the Veteran was noted to have had a weight decrease of 15 pounds over the past year. The Veteran stated that his only significant symptom was generalized fatigue. The Veteran reported that this was significant for him as he was a self-employed insurance man and had only worked 1/2 days since 2006 due to extreme fatigue. He denied any hospitalizations for the hepatitis C or cirrhosis. The Veteran had been diagnosed with cirrhosis in 2007. The Veteran denied having any vomiting, constipation or diarrhea. He reported having mild right upper quadrant tenderness with any significant lifting/pulling type exertion, otherwise, he was non-tender in that area. The Veteran indicated that he was working half-time but he performed his own activities of daily living as well as instrumental activities of daily living. Physical examination in February 2009 revealed a well-nourished individual. The Veteran weighed 225 pounds and was 6 feet tall. There was no dependent edema. The abdomen was soft and bowel sounds were times four. There was no hepatosplenomegaly, splenomegaly, masses, or generalized tenderness. The examiner diagnosed the Veteran as having hepatitis C, most likely unresponsive to treatment. His primary symptom was generalized fatigue, causing him to work half-time for the past 2.5 years. The Veteran was able to perform his own activities of daily living and instrumental activities of daily living. The examiner stated that it was likely the Veteran would only be successful in a sedentary position or very light duty position, and then would only be able to work half time due to his hepatitis C and complications. The examiner also diagnosed the Veteran as having cirrhosis of the liver, which he stated was likely to impair any moderate or strenuous activity. It was noted to be less likely to impair him with sedentary or light duty activity; however, the Veteran was only working half days. At the time of a March 2009 outpatient visit, the Veteran was noted to be doing well and had no complaints referable to the liver. He denied fever, chills, or other infectious symptoms. His appetite was good but his energy level was described as fairly low. In his April 2009 notice of disagreement, the Veteran reported having fatigue and malaise. He indicated that he was lucky to have his own business and to have built up half way decent residual income and that he could make his business by appointments. He stated that this allowed him to come in late, leave early, and take naps. He noted that he had lost anywhere from 10 to 15 percent of his body weight since 2003/2004 and that his diet had been restricted as so many foods upset his stomach. He stated that he had taken a lot of time off. In September 2009, the Veteran was see with complaints of hand pain and right shoulder pain. X-rays taken at that time revealed mild degenerative joint disease. The Veteran also reported having had severe leg cramping over the weekend, which the physician attributed to a low potassium level. In the September 2009 treatment record the physician indicated that the Veteran had evidence of cirrhosis and portal hypertension and that varices were present but small, with the Veteran not having a high risk for bleeding. At the time of a follow-up visit later that month, the Veteran reported feeling good and having no infectious symptoms. He also had a good appetite and good energy levels. The Veteran was noted to weigh 225 lbs. At the time of a January 2010 outpatient visit, the Veteran was noted to weigh 225 lbs. and appeared well on physical examination. At a March 2010 outpatient visit, the Veteran reported that he was doing well and still working full-time but thinking about changing jobs. His appetite was good, his energy level excellent, and he denied all infectious symptoms. A CT scan performed earlier that month was noted to have revealed no areterial hyperenhancing liver lesions to suggest hepatocellular carcinoma, with findings suggestive of cirrhosis with portal hypertension. In his March 2010 substantive appeal, the Veteran indicated that there was more than enough evidence to support a 60 percent evaluation. He reported that his diagnosis of hepatitis came as a result of his complaints of pain in his chest and legs, joint and muscle discomfort, and being tired and reducing exercise program. He also reported that he had lost more than 30 lbs. At the time of a May 2010 VA outpatient visit, the Veteran was noted to weigh 210 lbs. The Veteran also denied having any weight loss. At the time of an October 2010 outpatient visit, the Veteran reported that he was feeling pretty good, although fatigued and he had a good appetite and no infectious symptoms. An EGD done for varices was asymptomatic. An October 2010 abdominal CT scan revealed the lung bases were clear and the spleen, kidneys, adrenal glands, pancreas, and gallbladder were within normal limits. There was no focal hepatic mass lesion on any phase. Findings suggestive of cirrhosis were unchanged and the portal venous system remained patent. A MRI performed in October 2011 revealed that the hepatic parenchyma was negative for suspicious arterial hyper enhancement or post contrast delayed hypoenhancement. There was no suspicious hepatic parenchymal signal abnormality. The hepatic surfaces were nodular with hypertrophy of the caudate and left lobes. The gallbladder was hydropic with trace pericholecystic fluid. There was no wall thickening and no intra or extrahepatic biliary ductal dilatation. The pancreas was unremarkable without ductal dilatation and the spleen was normal size without signal abnormality. Both adrenal glands and both kidneys were unremarkable. The main portal vein was normal caliber measuring 12 mm. The splenic, visualized superior mesenteric, and portal veins were patent. There was conventional celiac axis branching anatomy. There were stable gastrohepatic and gastroesophageal varices. The bowel caliber was normal and there was trace perihepatic fluid. Prominent retroperitoneal lymph nodes were again identified and the lung bases were unremarkable. The osseous marrow signal was normal without abnormal enhancement. The assessment was cirrhosis due to hepatitis C. At the time of a May 2012 visit, the Veteran reported that he was doing well. His appetite was good, and his energy level was described as normal. As to the Veteran's service-connected hepatitis C, as noted above and as reported by the Veteran, the evidence shows it causes daily fatigue, but there were no objective findings of malaise, anorexia, or hepatomegaly shown by the treatment records or on VA examination. As to weight loss, while weight loss is shown to have occurred, it was not attributed to the Veteran's hepatitis C by any medical providers. Moreover, rather than being an indicator of a health impairment, the record contains notations that that the weight loss was beneficial as it related to hypertension and overall health. The Board further observes that there were no incapacitating episodes, as defined by regulation, having a total duration of at least four weeks, but less than six weeks, during any 12 month period throughout the appeal period. The Board notes that the Veteran continued to work on a daily basis in a self-employed capacity as an insurance agent. As to the Veteran's cirrhosis of the liver, as a residual of his hepatitis C, while the Board notes that it has been linked to causing portal hypertension and varices, it has not been shown to cause splenomegaly, nor has anorexia; abdominal pain; malaise; nor has minor weight loss been attributed to cirrhosis of the liver in any treatment record or by any medical professional. While the Board notes that the Veteran has been found to have fatigue which can be used synonymously with weakness, Note 1 under DC 7354 specifically prohibits the same signs and symptoms being used to rate sequelae. Furthermore, while the Veteran has been found to have portal hypertension, which is one of the requirements listed for a 30 percent disability under DC 7312, the portal hypertension must be accompanied by splenomegaly, as per the regulation, both hypertension and splenomegaly must be present for the 30 percent disability evaluation to be assigned. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). As such, the criteria for a compensable disability evaluation for cirrhosis of the liver as a sequelae to of the hepatitis C have not been met or approximated for any period. As the preponderance of the evidence is against an evaluation in excess of 20 percent for any period, 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 Consideration The Court has held that the Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular rating fails to reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability, then either the RO or the Board must determine whether a veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. In this case, the Board finds that the schedular rating criterion adequately contemplate the symptoms and impairment caused by the service-connected hepatitis C and cirrhosis symptoms, specifically, daily fatigue, without objective findings of malaise, anorexia, or hepatomegaly. A rating in excess of the 20 percent rating currently assigned is provided for certain manifestations of the service-connected disability at issue, including 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; however, the evidence reflects that those manifestations are not present in this case. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected disability on appeal is not required. Earlier Effective Date for 20 Percent Rating for hepatitis C Assignment of effective dates for increased disability evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. (b)(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110. The pertinent provisions of 38 C.F.R. § 3.400 clarify that the effective date of an increase in compensation will be determined as follows: (o) Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court has held, and the VA General Counsel has interpreted, that the laws and regulations pertaining to the effective date of an increase are as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of receipt of claim for increase. If the increase occurred after the date of claim, the effective date is the date of increase (the later of the two dates). 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98. In a September 2005 rating determination, the RO granted service connection for hepatitis C and assigned a noncompensable (0 percent) initial disability evaluation effective September 3, 2004. The Veteran was notified of this decision that same month. He filed a notice of disagreement with the assigned disability evaluation in July 2006, and a statement of the case was issued in May 2007. Thereafter, the Veteran did not perfect his appeal, nor was any other evidence received which would have allowed the claim to remain open; thus, the September 2005 rating decision became final as to the rating and effective date assigned for the rating. No further correspondence was received from the Veteran with regard hepatitis C until December 16, 2008 when he requested an increased disability rating for his hepatitis C. In conjunction with his claim, the Veteran was afforded a VA examination in February 2009. In a February 2009 rating determination, applying the appropriate criteria, the RO assigned a 20 percent rating for the hepatitis C, with an effective date of December 16, 2008, the date of receipt of the Veteran's claim for an increased rating. As noted above, the Veteran expressed disagreement with the assigned effective date and perfected an appeal with regard to this issue. The pertinent period for determining whether an effective date earlier than December 16, 2008 is warranted is the one year period preceding the receipt of the Veteran's request for an increased evaluation. In this regard, the Board notes, as evidenced above, that there are no medical records demonstrating an increase in the Veteran's hepatitis C in the one year period prior to receipt of the claim for an increased rating on December 16, 2008. VA treatment records do not reveal that the Veteran met the criteria for a 20 percent disability evaluation within the one year period prior to receipt of his claim for an increased evaluation. In the absence of a claim, an informal claim or other evidence of an increase in severity in the one year prior to the December 16, 2008 claim, the evidence does not satisfy the eligibility requirements for an earlier effective date sought in this appeal; thus, the effective date for the assignment of a 20 percent evaluation for hepatitis C is the date of claim, December 16, 2008. 38U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim for increase). The Veteran's assertion that the increase occurred more than one year earlier than the date he submitted a claim for increase is without legal significance because any increase in disability more than one year prior to receipt of claim for increase would require the effective date to be the date of receipt of claim for increase rather than the date of worsening (also referred to as the date entitlement arose or date of factually ascertainable increase). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (holding that at least some part of the increase must occur during the one year period, and rejecting the argument that 38U.S.C.A. § 5110(b)(2) applies before the one year prior to the claim). ORDER A disability rating in excess of 20 percent for hepatitis C with cirrhosis is denied. An effective date earlier than December 16, 2008, for the assignment of a 20 percent disability rating for hepatitis C with cirrhosis is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs