Citation Nr: 1334324 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-09 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a compensable rating for service-connected hepatitis C from December 9, 2009, to January 30, 2012. 2. Entitlement to a rating in excess of 40 percent for service-connected hepatitis C from January 30, 2012. 3. Entitlement to a compensable rating for service-connected hepatitis B. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for hepatitis C and assigned a noncompensable rating from December 9, 2009. The Veteran subsequently initiated an appeal by filing a timely notice of disagreement. Then, by rating decision in March 2012, the rating was increased to 40 percent, effective from January 30, 2012. A claim for a higher rating may also include a claim for a total rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Board notes that the Veteran has specifically raised the issue of TDIU in a May 2012 letter. Review of VA's electronic records storage (Virtual VA) shows that the rating for another service-connected disability (posttraumatic stress disorder) was increased to 70 percent by recent rating decision in August 2013. However, that rating decision denied TDIU, so the Board finds that the Veteran is still advancing a TDIU claim in association with the present appeal. By rating decision in August 2011, the RO also granted service connection for hepatitis B and assigned a noncompensable rating. A March 2012 letter from the Veteran effectively constituted a notice of disagreement as to the rating assigned for hepatitis B. The issues of entitlement to a compensable rating for hepatitis B and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's hepatitis C was subclinical and asymptomatic from November 9, 2009, to April 25, 2011. 2. The Veteran's hepatitis C was productive of fatigue, malaise, and some liver enlargement from April 25, 2011, to January 30, 2012. 3. From January 30, 2012, the Veteran's hepatitis C was productive of daily fatigue, malaise, anorexia, nausea, vomiting, arthralgia, hepatomelagy, right upper quadrant pain, some weight loss, and malnourishment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hepatitis C from December 9, 2009, to April 25, 2011, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.113, Diagnostic Code 7354 (2013). 2. The criteria for a 10 percent rating (but no higher) for hepatitis C from April 25, 2011, to January 30, 2012, have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.113, Diagnostic Code 7354 (2013). 3. The criteria for a rating of 60 percent (but no higher) for hepatitis C from January 30, 2012, have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.113, Diagnostic Code 7354 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify VA has satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim; (2) the claimant is to provide; and (3) VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. In a December 2009 letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought. In addition, he was advised of the types of evidence VA would assist him in obtaining, as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183; Charles v. Principi, 16 Vet. App. 370 (2002). The December 2009 letter was sent prior to the Veteran's January and March 2012 rating decisions. Therefore, VCAA notice was timely in this case. See Pelegrini, 18 Vet. App. 112. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Duty to Assist The Board finds that the VA complied with the assistance provisions set forth in the law and regulations. All available pertinent records, including in-service, private, and VA records have been obtained. All pertinent medical records and VA examination reports are of record and contain sufficiently specific clinical findings and informed discussion of the pertinent features of the disability on appeal to provide probative medical evidence adequately addressing the issue decided below. No additional pertinent evidence has been identified by the Veteran as relevant to this appeal. The Veteran was afforded VA examinations in October 2010, April 2011, and February 2012. The Board finds that these examinations were thorough, and that the examiners adequately addressed the symptoms listed under the relevant criteria in the applicable diagnostic codes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that VA must ensure the adequacy of any examination or medical opinion it provides). Under these circumstances, no further action is necessary to assist the Veteran with the hepatitis C issue on appeal. As such, 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)(4). Laws and Regulations The Veteran seeks entitlement to a compensable rating for his service-connected hepatitis C from December 9, 2009, to January 30, 2012, and an increased rating in excess of 40 percent for the same disability from January 30, 2012. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In 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. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the Board must consider staged ratings where appropriate. Id. The Veteran's hepatitis C is rated under 38 C.F.R. § 4.114, Diagnostic Code 7354. A 10 percent evaluation is warranted where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: 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 is warranted where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: 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 is warranted where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: 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 is warranted where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: 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. A 100 percent evaluation is warranted where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). See 38 C.F.R. § 4.114, Diagnostic Code 7354. For rating purposes, "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. "Baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. Factual Background and Analysis A November 2009 VA treatment record notes the Veteran tested positive in a hepatitis C RIBA and antibody test. Subsequently, in July 2010 the VA National Center for Patient Safety issued an alert that certain RIBA HCV testing strips may have indicated false positive results. Thereafter, on October 2010 VA examination, the Veteran was again diagnosed positive for hepatitis C. It was noted as "cleared." An April 25, 2011, VA examination found the Veteran's hepatitis was C "subclinical" at the time, noting only some slight protuberance of the abdomen, with slight tenderness in the right upper quadrant. The Veteran denied abdominal pain. Nausea and vomiting were in association with recently diagnosed diabetes, but the examiner stated that the Veteran was chronically fatigued and malaise. He did not have anorexia or arthralgia. The examination also noted that "enlarged liver was not palpable." No incapacitating episodes within the preceding 12-month periods were reported. The report of a June 2011 examination in connection with diabetes notes a 30 pound weight loss over the past year due to exercise. The Veteran was afforded another VA examination in February 2012. At that time, the Veteran was again given a hepatitis C antibody RIBA test, which returned positive. In addition, the examiner noted that the Veteran had several signs and symptoms attributable to his hepatitis C, including intermittent, severe fatigue five to seven days a week, severe malaise, anorexia, nausea, vomiting, occasional arthralgia, weight loss of about 10 to 12 pounds in the last year, right upper quadrant pain, and hepatomegaly. The examiner also noted that the Veteran was under dietary restrictions and malnourished at the time. December 9, 2009, to April 25, 2011 The evidence from December 9, 2009, to April 25, 2011, shows that the hepatitis C was essentially asymptomatic. On examination in October 2010, the hepatitis was described as cleared. The Veteran denied incapacitating episodes. There was no organomegaly; the liver felt normal on examination. No abdominal pain was reported. The Veteran was described as obese with no evidence of malnutrition. Based on this evidence, the Board finds that the criteria for a compensable rating for the hepatitis C were not met. April 25, 2011, to January 30, 2012 However, the Board finds that the Veteran's hepatitis C symptoms more nearly approximated the criteria for a 10 percent rating from April 25, 2011, to January 30, 2012. The Veteran had an enlarged liver and some right upper quadrant pain during his April 2011 examination. Although not entirely clear, it appears that the fatigue and malaise reported were associated with the hepatitis C. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 10 percent rating were met effective from April 25, 2011. However, it is clear that a higher rating is not warranted for this period. There is no evidence of daily fatigue, malaise, and anorexia requiring dietary restriction or continuous medication. There is also no evidence of incapacitating episodes. The criteria for the next higher rating of 20 percent under Code 7354 were not met. From January 30, 2012 It is not clear to the Board why the RO determined that an effective date of January 30, 2012, was warranted for the 40 percent rating. It appears that the VA examination which supported such a rating was conducted in early February. At any rate, the Board uses the same January 30, 2012, date and finds that the criteria for a 60 percent rating for hepatitis C were met from that date. The February 2012 VA examination shows that the Veteran reported daily severe fatigue, severe malaise, anorexia, and hepatomegaly. While his weight loss may not have been "substantial" as defined by 38 C.F.R. § 4.112, the rating criteria also contemplates "other indications of malnutrition." 38 C.F.R. § 4.114, Diagnostic Code 7354. Here, the VA examiner explicitly noted that the Veteran was malnourished at the time. Therefore, under Diagnostic Code 7354, the Veteran is entitled to a 60 percent rating, even absent any incapacitating episodes. However, the clear preponderance of the evidence is against entitlement to the next higher rating of 100 percent. The record simply does not show near-constant debilitating symptoms as required under Code 7354. The Board also recognizes that the Veteran and the record may be understood to suggest impact of the service-connected disability on the Veteran's work functioning. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, 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 for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Code for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER A compensable rating for hepatitis C from December 9, 2009, to April 25, 2011, is not warranted. To this extent, the appeal is denied. Entitlement to a 10 percent rating for hepatitis C from April 25, 2011, to January 30, 2012, is warranted. Entitlement to a 60 percent rating for hepatitis C from January 30, 2012, is warranted. To this extent, the appeal is granted, subject to laws and regulations governing payment of VA monetary benefits. REMAND As noted in the introduction, the Veteran filed a notice of disagreement in March 2012 to initiate an appeal from the August 2011 rating decision which granted service connection for hepatitis B with a noncompensable rating. Appropriate action, including issuance of a statement of the case, is therefore necessary with regard to the issue of entitlement to a compensable initial rating for hepatitis B. 38 C.F.R. § 19. 26; Manlincon v. West, 12, Vet.App. 238 (1999). With regard to the TDIU issue which have been raised in connection with the issue of higher ratings for hepatitis C, further development is necessary to fully assist the Veteran. This issue is also intertwined with the issue of a compensable initial rating for hepatitis B. Accordingly, the case is REMANDED for the following actions: 1. The RO should ensure that the Veteran has been furnished proper VCAA notice for the TDIU claim. 2. The RO should then take appropriate action to develop the TDIU claim, to include an appropriate VA examination/opinion on the impact of his service-connected disabilities on his ability to engage in substantially gainful employment. 3. The RO should also take appropriate action pursuant to 38 C.F.R. § 19.26, to include issuance of a statement of the case, on the issue of entitlement to a compensable initial rating for hepatitis B. The Veteran should be advised of the necessity of filing a timely substantive appeal if he wishes to complete an appeal as to this issue. 4. After completion of the above, the RO should review the expanded record and determine whether entitlement to TDIU is warranted. If the issue remains denied, then the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. 5. After completion of the above, if the RO has filed a timely substantive appeal on the hepatitis B issue, and/or if TDIU remains denied, then the claims file should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs