Citation Nr: 1335244 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-12 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable evaluation for hepatitis C prior to September 16, 2010, and in excess of 10 percent from September 16, 2010, to January 9, 2013. 2. Entitlement to a rating in excess of 20 percent from January 9, 2013, for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, denied service connection for a left shoulder disorder, granted service connection for hepatitis C, and assigned a noncompensable evaluation for the hepatitis C, effective from January 1, 2005. In June 2010, the Board remanded the case for additional development. In March 2012, the Appeals Management Center (AMC) increased the evaluation for hepatitis C to 10 percent, effective from September 16, 2010. In December 2012, the Board again remanded the case for additional development, to include scheduling VA examinations. In July 2013, the AMC granted service connection for arthralgia and sprain of the left shoulder and assigned a noncompensable evaluation, effective January 1, 2005, and increased the evaluation for hepatitis C to 20 percent, effective from January 9, 2013. As the increased rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn her claim, the hepatitis C issue is still on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). However, the Veteran was granted the benefit she sought on appeal with respect to service connection for the left shoulder, and has not filed a notice of disagreement regarding her assigned effective date or rating; thus, the service connection claim is no longer on appeal. See id. (The decision below addresses the question of entitlement to higher ratings until January 9, 2013, when a 20 percent rating was made effective. The question of entitlement to a rating higher than 20 percent since January 9, 2013, is the subject of a remand that follows the decision below.) FINDINGS OF FACT 1. Prior to September 16, 2010, the Veteran's hepatitis C was manifested by fatigue, but there was no objective evidence of malaise, anorexia, weight loss, hepatomegaly, nausea, vomiting, arthralgia or right upper quadrant pain; no incapacitating episodes were shown. 2. Between September 16, 2010, and January 9, 2013, the Veteran's hepatitis C was manifested by daily fatigue and a liver that was at the upper limits of normal size; there was no objective evidence of incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) of at least two weeks but less than 4 weeks. CONCLUSIONS OF LAW 1. Prior to September 16, 2010, the criteria for an initial compensable evaluation for hepatitis C were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1 - 4.7, 4.10, 4.114, Diagnostic Code (DC) 7354 (2013). 2. Between September 16, 2010, and January 9, 2013, the criteria for an evaluation in excess of 10 percent for hepatitis C were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1 - 4.7, 4.10, 4.114, DC 7354 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, 19 Vet. Ap. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate her claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The claim for a higher disability rating is a "downstream" issue in that it arose from an initial grant of service connection. Prior to the May 2005 rating decision, the RO issued a letter in January 2005 that advised the Veteran of the evidence necessary to substantiate her claim of service connection and of her and VA's respective obligations with regard to obtaining evidence. Importantly, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim for service connection has been more than substantiated and proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim of service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. See Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), VA treatment records, and private treatment records in furtherance of her claim. There is no indication that any additional action is needed to comply with the duty to assist. The Veteran was afforded VA examinations in April 2005, May 2009, and September 2010. The examination reports and medical opinions reflect that the VA examiners thoroughly reviewed the Veteran's past medical history, documented her medical conditions, and provided opinions that appear to be consistent with the remainder of the evidence of record. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet with regard to the issues decided herein. II. Higher Ratings prior to January 9, 2013 The Veteran seeks higher initial evaluations for her hepatitis C. She has been assigned a noncompensable evaluation from January 1, 2005, a 10 percent evaluation from September 16, 2010 (the date of a VA examination), and a 20 percent evaluation from January 9, 2013 (the date of the most recent VA examination). As will be explained below, the Board finds that the evidence does not support a finding that higher evaluations for this disability are warranted for the periods prior to January 9, 2013. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. A determination is made as to the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 115 ; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Hepatitis C is rated under DC 7354, which provides that a noncompensable evaluation is assigned when the disability is non-symptomatic. A rating of 10 percent is assigned where the veteran has 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 rating of 20 percent is assigned where the veteran has 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 rating of 40 percent is assigned where the veteran has 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 rating of 60 percent is assigned where the veteran has 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 rating of 100 percent is assigned where the Veteran has 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). 38 C.F.R. § 4.114, DC 7354 (2013). Sequelae, such as cirrhosis or malignancy of the liver, are to be rated under an appropriate diagnostic code, but the same signs and symptoms should not be used as the basis for rating under both diagnostic codes. 38 C.F.R. § 4.114, DC 7354, Note (1) (2013). An incapacitating episode means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7354, Note (2) (2013). The evidence shows that at an April 2005 VA general medical examination the Veteran reported her weight as stable. Her appetite was reported to be "okay." An April 2009 liver biopsy was performed due to the presence of a liver lesion. A May 2009 VA treatment record indicates that the biopsy showed stage II liver disease. A May 2009 VA liver examination report shows that the Veteran denied any flare-ups or fatigue related to her hepatitis C. She reported a slight transient elevation on a liver function test while taking a multivitamin, but indicated that her liver enzymes returned to normal after she discontinued the multivitamin. She also reported that the April 2009 liver biopsy was consistent with cirrhosis. The Veteran denied anorexia, malaise, abdominal pain, and weight loss. She also denied incapacitating episodes. A physical examination revealed no signs of chronic liver disease. Liver size was normal. Laboratory results showed slight minimal abnormality in liver function. Specifically, serum glutamic oxaloacetic transaminase (SGOT) was 46 and serum glutamate pyruvate transaminase (SGPT) was 55. The diagnosis was chronic hepatitis C infection. A May 2009 VA hemic examination report shows that the Veteran reported a history of anemia that was diagnosed at the time of her ulcerative colitis in 1991. Her anemia had stabilized after she started taking iron supplements. She denied fatigue or weakness. The diagnosis was "remote history of anemia currently not anemic on iron supplement tablets." An August 2010 treatment record indicates that the Veteran complained of fatigue. The clinician noted that the May 2009 biopsy showed "2/4 piecemeal necrosis; no confluent necrosis; 2/4 lobular necrosis; 2/4 portal inflammation (moderate); 2/5 fibrous septae." The Board finds that a 10 percent evaluation is not warranted prior to September 16, 2010. Although the Veteran reported fatigue in August 2010, there is no indication that she also had malaise and anorexia accompanying the fatigue as required for a compensable rating. Nor is there any evidence of 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 this time period. Her hepatitis C therefore more closely approximated the criteria for a noncompensable rating during this initial time period. As noted above, the RO has assigned a 10 percent rating from September 16, 2010, to January 9, 2013. During a VA liver examination in September 2010, the Veteran complained of fatigue and malaise. She denied weight loss and anorexia. She reported no episodes of abdominal pain, distention, nausea, or vomiting in the previous 12 months. She was unemployed. An abdominal examination was normal. The examiner noted that there were no extra-hepatic manifestations of liver disease. He found no evidence of malnutrition. Lab work revealed elevated SGOT and SPT levels. The examiner reviewed the claims file, to include the results of the April 2009 liver biopsy. He noted that a March 2010 CT ultrasound of the liver revealed diffuse fatty infiltration of the liver and that the liver was at the upper limits of normal size. The examiner also noted that this condition had no effect on the Veteran's daily activities and no significant effects on her usual occupation. Finally, he concluded that there was no evidence of cirrhosis of the liver "as evidenced by liver biopsy and hepatic ultrasound." Correspondence dated in April 2012 indicates that the Veteran experienced chronic fatigue as a side effect of hepatitis C. She stated that "[b]y the late afternoon, I've been inclined to take naps in order to restore my energy." She wrote "follow-up visits to my GI doctor should indicate that my complaints concerning fatigue are consistent with every visit." The Veteran further stated that anorexia "does not belong in my diagnosis nor should it." Finally, the Veteran indicated that she followed dietary restrictions in order to minimize any ill effects to her liver. The Board finds that a 20 percent evaluation is not warranted between September 16, 2010, and January 9, 2013, because the Veteran's hepatitis C was not manifested by daily fatigue, malaise, and anorexia 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 a 12-month period. The Board acknowledges the Veteran's report of daily fatigue as well as dietary restrictions. However, the Board finds that a rating higher than 10 percent is not warranted during this time period because DC 7354 is conjunctive at the 20 percent level and requires daily fatigue, malaise, and anorexia, requiring dietary restriction or continuous medication. As there is no evidence of anorexia from September 16, 2010 to January 9, 2013, the Board finds that a higher rating is not warranted. Moreover, there were no evidence of incapacitating episodes having a duration of at least two weeks during the period under consideration, as is alternatively required to warrant a 20 percent rating under DC 7354. It logically follows that the criteria for an even higher 20 percent rating likewise have not been met. The Board has considered whether a higher or additional rating may be assigned under alternative diagnostic codes for either time period. While DC 7354, Note (1) provides that sequelae such as cirrhosis or malignancy of the liver be evaluated under an appropriate diagnostic code, the Veteran's liver has not been shown to be productive of cirrhosis or adhesions of the peritoneum. Thus, DCs 7301 and 7312 are not applicable. Additionally, a separate evaluation may not be assigned under DC 7345 for chronic liver disease without cirrhosis because evaluations under this diagnostic code are based on the same rating criteria as the evaluations currently assigned and would violate the rule against pyramiding. See 38 C.F.R. § 4.14. Consideration has also been given regarding whether the schedular evaluations are inadequate, requiring referral of the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating; otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The schedular evaluations for the periods prior to January 9, 2013, are adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's hepatitis C. The Veteran has not required hospitalization due to this service-connected disability. Here, the very problems reported by the Veteran - fatigue, malaise, and dietary restriction - are contemplated by the criteria discussed above. Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that no extraschedular referral is required. ORDER Entitlement to an initial compensable evaluation prior to September 16, 2010, for service-connected hepatitis C is denied. Entitlement to an evaluation in excess of 10 percent from September 16, 2010, to January 9, 2013, for service-connected hepatitis C is denied. REMAND The Veteran has asserted in the context of her claim for a higher evaluation for hepatitis C that she is now unemployable. A VA examination, which later provided the basis for the RO's grant of a 20 percent rating, was conducted January 9, 2013. The examiner indicated that the Veteran's hepatitis C impacted her ability to work due to chronic fatigue in that "she can't be active, she can't get anything done." Therefore, in light of the Court's decision in Rice v. Shinseki, 22 Vet. App. 447 (2009), VA must consider the question of whether, as part of the current question of entitlement to a higher rating, the Veteran is now unemployable because of her hepatitis C. Accordingly, in order to obtain more definitive evidence on this point, the case is REMANDED for the following action: 1. Send the Veteran a Veterans Claims Assistance Act of 2000 letter pertaining to the issue of entitlement to a total rating based on individual unemployability (TDIU). The Veteran and her representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination. The claims file, to include a copy of this remand, must be made available to the examiner. The examiner must consider the effect of the Veteran's service-connected hepatitis on her ability to work. Report of the examination must include discussion of the Veteran's documented medical history and assertions. In addition, the examiner must elicit from the Veteran and record for evaluation purposes a full work and education history. Following examination of the Veteran and review of the claims file, the examiner must offer an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's service-connected hepatitis precludes her from securing or following substantially gainful employment, without consideration of her age, and taking into account her educational and occupational history and background. Findings should also be made sufficient to apply the rating criteria for hepatitis C. A full and complete rationale for all opinions expressed must be provided. 3. After undertaking any other development deemed appropriate, readjudicate the issue of entitlement to a higher rating since January 9, 2013, including the question of TDIU based on hepatitis C. If a sought-after benefit remains denied, furnish the Veteran and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs