Citation Nr: 1316642 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 06-35 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an evaluation in excess of 10 percent for hepatitis C, with a history of infectious hepatitis, from March 27, 2007. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a March 2004 rating decision, the RO granted service connection for hepatitis C with a history of infectious hepatitis and assigned an initial, non-compensable evaluation, effective December 29, 2003. The Veteran then submitted a timely appeal of the initial rating. Thereafter, in an October 2007 rating decision, the RO increased the evaluation for the Veteran's disorder to 10 percent, effective March 27, 2007. The Veteran then appealed the disability evaluation, as well as the issue of entitlement to an earlier effective date for the 10 percent rating. The Board has previously considered this claim. In a January 2008 decision, the Board denied the Veteran's claim of entitlement to an initial compensable evaluation for hepatitis C with history of infectious hepatitis. In a September 2010 decision, however, the Board vacated the January 2008 decision due to a denial of due process. At that time, the Board also remanded the Veteran's claim for additional development. Thereafter, in a March 2012 Supplemental Statement of the Case (SSOC), the VA Appeals Management Center (AMC) again denied the Veteran's claim. In November 2012, the Board denied the Veteran's earlier effective date claim, as well as his claim for a compensable rating prior to March 27, 2007. The Veteran's claim for entitlement to an evaluation in excess of 10 percent, from March 27, 2007, was remanded to associate more recent VA treatment records, and to afford the Veteran an opportunity to submit release forms so as to obtain any outstanding, pertinent, private medical records. That development having been completed, this issue is properly before the Board for disposition. FINDING OF FACT The Veteran's hepatitis C is shown to be productive of no more than intermittent or daily symptoms of fatigue. Dietary restriction and continuous medication are not required. While nausea and loss of appetite were reported, there are no associated symptoms of malaise, vomiting, anorexia, abdominal pain, weight loss, or incapacitating episodes requiring bed rest or treatment by a physician. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7354 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant, 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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). Neither the Veteran nor his representative has alleged prejudice with respect to notice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. VA's duty to notify has been satisfied. The Veteran was notified in May 2007 of the criteria for establishing service connection and an increased rating, the evidence required, and his and VA's respective duties for obtaining evidence. That letter addressed all notice elements and predated the initial adjudication in October 2007. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required. As for the duty to assist, the Veteran's service medical records have been obtained. Following the November 2012 Board remand, pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the claim, has been submitted, identified, or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was most recently afforded a VA examination to address his claim in January 2012. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The VA examination report is adequate to decide the claim addressed, as the examination report included a thorough review of the file, and examination findings relevant to the issue at hand. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any error is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Increased Rating Disability ratings are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). In order to rate 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 (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. 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, the reasonable doubt shall be resolved in favor of the Veteran. 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. Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evidence of record does not establish additional, distinct time periods where the disability at issue has resulted in symptoms that warrant additional staged ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2012). However, the rating of the same disability or the same manifestations under various diagnoses is not allowed. 38 C.F.R. § 4.14 (2012). A claimant may not be compensated twice for the same symptomatology as such a result would overcompensate the claimant for the actual impairment of his earning capacity. Brady v. Brown, 4 Vet. App. 203 (1993); 38 U.S.C.A. § 1155 (West 2002). That would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14 (2012). If a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Assignment of a particular Diagnostic Code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where there is a question as to which of two ratings 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. 38 C.F.R. § 4.7 (2012). Here, the Veteran's service-connected hepatitis C is rated as 10 percent disabling under Diagnostic Code 7354, used for rating hepatitis C. 38 C.F.R. § 4.114 (2012). Historically, he was rated under DC 7345, which is assigned for chronic liver disease without cirrhosis, including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, but excluding bile duct disorders and hepatitis C. The Board notes that not only does the rating schedule expressly provide that hepatitis C be rated under Diagnostic Code 7354, but Diagnostic Code 7345 explicitly excludes hepatitis C. Notwithstanding those explicit provisions as to the diagnostic code under which to rate hepatitis C, the rating criteria under each Diagnostic Code are essentially identical. Under Diagnostic Code 7354, a 10 percent is warranted when the Veteran has serologic evidence of hepatitis C infection and the following signs and symptoms due to that 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 rating is warranted when symptoms include daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms described above) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. 38 C.F.R. § 4.114 (2012). An incapacitating episode is a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 2 (2012). The term 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. The term inability to gain weight means that there has been substantial weight loss with inability to regain it despite appropriate therapy. Baseline weight means the average weight for the two-year- period preceding onset of the disease. 38 C.F.R. § 4.112 (2012). Turning to the current appellate period, the Veteran was first afforded a VA examination to address his claim in June 2007. At that time, it was noted that the Veteran was diagnosed with hepatitis C in 2003. The Veteran denied recent yellow jaundice or cirrhosis of the liver, or recent hospitalization for the management of his chronic liver disorder. There were no ascites. The Veteran did not report any treatment for his hepatitis C, other than standard blood tests (the most recent of which found that viral load was more than 3,500,000). The Veteran reported chronic fatigue for the prior three years, and was unable to walk more than 0.5 miles or climb more than one flight of stairs. However, the examiner indicated that there were no restrictions on activities. The Veteran denied symptoms of chronic itching or diffuse muscle or joint pain. He did report an intermittent, "vague" pain in his abdomen. He reported nausea, without vomiting. There was no hematemesis, and no upper GI bleeding. He also reported a diminished appetite, with a weight fluctuation of 10 pounds. On examination, there was no obvious nutritional deficiency, and he was in no acute distress. He was diagnosed with a hepatitis C infection. An additional VA examination was provided in January 2012. It was again noted that the Veteran carried a diagnosis of hepatitis C, initially diagnosed in 2003. He indicated that he never received treatment for this disability, and that he had not been hospitalized for this disorder during the appellate period. He reported that he had been tired for a long time, daily. There were no other signs or symptoms attributable to cirrhosis or any other liver disorder, and continuous medication was not required for control of hepatitis C. The Veteran was not a liver transplant candidate, was not currently hospitalized waiting a transplant, and had never undergone a transplant. Following an examination, there were no other pertinent physical findings and/or symptoms related to any other applicable condition. The examiner noted a 2009 CT scan which demonstrated diffuse fatty infiltration and/or hepatocellular disease. There was no solid or cystic hepatic mass. It was also indicated that hepatitis C did not inhibit the Veteran's ability to work. The Board has reviewed the Veteran's VA outpatient record, to include that evidence associated with the Virtual VA system following the November 2012 Board remand, however there is no evidence that his hepatitis C has manifest more severely during the appellate period than demonstrated by the two VA examinations of record. Based upon its review of the evidence of record, the Board finds there is no basis for a disability rating in excess of 10 percent for hepatitis C. The evidence shows that the Veteran's hepatitis C objectively manifests as chronic fatigue. However, there is no evidence of record indicating that it otherwise causes malaise or anorexia. While the Veteran reported a decreased appetite with some nausea, he also indicated that his weight fluctuated by 10 pounds. He never indicated that he was unable to gain weight, and no eating disorder was identified by either provider. Under Diagnostic Code 7354, the assignment of a 20 percent rating for hepatitis C requires a showing of those symptoms on a daily basis and a need for dietary restriction or continuous medication, or incapacitating episodes having a total duration of at least two weeks during the past 12-month period. In this case, the Veteran reported, and physicians noted, fatigue, but no malaise or anorexia. Moreover, there is no indication that the Veteran has been prescribed medication for hepatitis C during the course of the appeal, or received treatment of any kind (save for routine blood tests). With respect to a higher rating based on the frequency and extent of incapacitating episodes, defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician, the Board notes that there is no indication, from the Veteran or any medical provider, that an incapacitating episode was experienced since the Veteran filed his claim for service connection. Further, VA treatment records and examination reports, dated during the course of this appeal, do not show that the Veteran's fatigue involved regular visits to a physician and none of them show prescribed bed rest. Therefore, the evidence does not show doctor-prescribed bed rest due to incapacitating episodes. As a result, the Board finds that the Veteran's symptoms do not more nearly approximate the criteria for a rating in excess of 10 percent under Diagnostic Code 7354. 38 C.F.R. § 4.114 (2012). The Board has also considered rating the Veteran under closely-related codes. Higher ratings are provided for residuals of liver injury (Diagnostic Code 7311), cirrhosis of the liver (Diagnostic Code 7312), malignant neoplasms of the digestive system (Diagnostic Code 7343), and benign neoplasms, exclusive of skin growths (Diagnostic Code 7344). 38 C.F.R. § 4.114. However, absent clinical documentation of such findings, the Veteran is not entitled to a higher rating for his service-connected liver disorder under any of those Diagnostic Codes as those disabilities are not shown. Therefore, a higher rating for the Veteran's service-connected hepatitis C is not available at this time. The Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for hepatitis C, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching the above conclusions, the Board has also not overlooked the Veteran's statements regarding the severity of his service-connected disability. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such experiencing fatigue. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the Board finds the objective medical findings and opinions provided by the VA examiners of record are afforded the greater probative weight. 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 adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The above determinations are based upon consideration of applicable rating provisions. There is no showing that the Veteran's disability has demonstrated so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2012). The symptoms of his disability have been accurately compensated by the schedular criteria. Further, the Board points out that his disability rating encompasses a degree of occupational impairment relative to those ratings. Without sufficient evidence showing that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture warrants the assignment of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent rating for hepatitis C, from March 27, 2007. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 10 percent for hepatitis C, with a history of infectious hepatitis, from March 27, 2007, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs