Citation Nr: 1327835 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 08-11 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 20 percent for hepatitis C. 2. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran and his spouse testified at a personal hearing in September 2010 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. This appeal was previously before the Board in November 2010. The Board denied increased rating claims for bilateral hearing loss and tinnitus and remanded the current claim on appeal so that treatment records could be requested and the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his hepatitis C is manifested by daily malaise and anorexia, with minor weight loss and hepatomegaly, but not by 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 upper right quadrant pain) having a total duration of at least six weeks, but not occurring constantly, during the past 12-month period. CONCLUSION OF LAW The criteria for assignment of a 40 percent rating, and no higher, for chronic hepatitis C were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: (1) veteran status, (2) existence of a disability, (3) a connection between the veteran's service and the disability, (4) degree of disability, (5) and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO provided notice to the Veteran in a January 2007 letter, issued prior to the decision on appeal, regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran, the types of evidence that will be obtained by VA, and how effective dates and disability ratings are assigned. The letter also informed the veteran of the necessity of providing medical or lay evidence demonstrating the level of disability, and the effect that the symptoms have on his employment and daily life. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, Social Security Administration (SSA) records, VA examination reports, and statements from the Veteran. Most recently, in November 2010, the Appeals Management Center (AMC) sent the Veteran a letter requesting he provide information about his treatment, any treatment records in his possession, or releases so that the VA could attempt to obtain records. He did not respond to this letter. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on 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 ratings shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Hence, each following analysis is undertaken with consideration that staged ratings may be warranted. Pyramiding, i.e., the evaluation of the same disability or the same manifestations of the disability under different diagnoses is to be avoided. 38 C.F.R. § 4.14. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluations for the Veteran's hepatitis C have been assigned under 38 C.F.R. § 4.114, Diagnostic Code 7354. Diagnostic Code 7354 provides a 20 percent evaluation for symptoms of 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 months. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 40 percent rating is warranted for 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 hepatitis C manifested by 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 upper right quadrant pain) having a total duration of at least six weeks, but not occurring constantly, during the past 12-month period. A 100 percent rating is warranted for hepatitis C manifested by near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). The term "incapacitating episode" is defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.115 , Diagnostic Code 7354 (Note (2)). Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran was granted service connection for hepatitis C via an April 2002 rating decision, and was initially evaluated as 10 percent disabling. In a November 2004 decision, his rating was increased to 20 percent. The current claim on appeal was filed in January 2007. The Veteran requested an increased rating for his hepatitis C and noted that he was no longer able to work, and was receiving SSA disability benefits. An April 1999 VA treatment record notes that the Veteran was being treated for diabetes mellitus maturity onset, with symptoms of polyuria, polydipsia, and a 30 to 40-pound weight loss in the prior two and a half months. Blood work taken during his treatment for diabetes mellitus discovered his hepatitis C infection. In July 1999, the Veteran had no history of jaundice or liver problems, and he did not have any health complaints. Records reveal that he failed Rebetron and Interferon therapy, and that there is currently no therapy available to treat the Veteran's hepatitis C. Subsequent to the failed drug therapy attempts the Veteran began to complain of fatigue, concentration problems, and dyspnea. A January 2005 ultrasound revealed borderline hepatic steatosis, and an otherwise unremarkable right upper quadrant. In August 2005, the Veteran's treating physician provided a letter which stated the Veteran had active hepatitis C which had not responded to treatment and which caused persistent fatigue. Also, in August 2005, the Veteran denied a history of jaundice, gastrointestinal bleeding, or ascites. In November 2005, a VA physician noted the Veteran had hepatitis C with "ongoing inflammation of the liver as suggested by the persistent elevated liver enzymes." A liver biopsy was suggested, although it does not appear the Veteran ever consented to the operation. In November 2005, a physician associated with the SSA reviewed his medical records and provided a continuing disability review consultation. The physician found "no medical justification" for the physical limitations (to carry no more than 20 lbs. and to not sit or stand for more than 3 hours) provided by the VA treating physician. The consulting private physician also noted VA physician's statement that the Veteran's "persistent symptoms of easily becoming fatigued, impairment of memory and concentration and poor judgment...[are] more likely than not related to [the Veteran's] chronic active hepatitis C infection." The consulting physician found that, due to hepatitis C "ordinarily produc[ing] no symptoms at all, and patients are completely unaware they are sick until it produces endpoint cirrhosis 10 to 20 years after onset," minimal weight should be given to reports of hepatitis C symptoms in the Veteran as his infection was found via routine laboratory testing. In September 2006, the Veteran complained of increasing right upper quadrant pain and epigastric pain associated with eating. He noted the pain was intermittently dull and sharp and lasted a couple of hours. He also reported nausea, with his latest episode occurring two months prior. He stated that in the last year he has felt tired "all the time," and that he has suffered from insomnia for several years. The Veteran "lost about 10 lbs. intentionally over four months." He also reported occasional itchy skin for the past year. On physical examination, he did not have jaundice or organomegaly. He had mild right upper quadrant tenderness. In December 2006, the Veteran again complained of increasing right upper quadrant pain. In January 2007, the Veteran was provided a fee-basis VA examination. The Veteran reported symptoms of constant aches and pain, fatigue, abdominal pain, eyes turning yellow, skin itching, nausea, vomiting, loss of appetite, and loss of concentration. He also reported his weight decreased from 220 to 200 pounds in 24 months. He did not receive any treatment to correct his weight change. He indicated that his symptoms occur daily, and affect his ability to work. He denied incapacitating episodes, but noted periods of confusion, easy fatigue and dull thought processes. The Veteran's reported his functional impairment level as "unable to work due to dull thought processes, confusion, and insomnia." On physical evaluation, the Veteran was 204 lbs. and appeared well nourished. He had no evidence of jaundice. His liver was palpable, with tenderness, and splenomegaly. He was diagnosed with hepatitis C with elevated liver enzymes and ferritin consistent with liver disease. The evaluator reiterated the Veteran's subjective complaints of constant aches and pains, fatigue, abdominal pain, eyes turning yellow, skin itching and loss of concentration. In February 2007, the Veteran sought VA treatment and a letter to help him get an increase in disability. He complained of right upper quadrant pain, fatigue and difficulty concentrating, which he believed were symptoms of his hepatitis C infection. In March 2007, the Veteran's VA treating physician provided a letter noting the Veteran's concern with the progression of his hepatitis C, including his complaints of difficulty with concentration and memory, and a lack of energy. "The [Veteran] has evidence of significant ongoing liver injury with mild abnormalities of blood ammonia and INR (international normalized ration-a blood-clotting test). His cognitive function problems are probably related to his active chronic progressive hepatitis C." The physician noted the Veteran had not undergone a liver biopsy to establish the extent of his liver damage due to hepatitis C. Also in March 2007, the Veteran sought treatment for constant right upper quadrant pain. A March 2008 echocardiogram revealed hepatomegaly-a mildly enlarged liver. The Veteran complained of vomiting five to six times a day, diarrhea, and continued nausea. He was thought to have acute gastroenteritis. In June 2008, he complained of occasional right upper quadrant pain and fatigue. In September 2009, the Veteran was afforded a VA examination. He denied a history of jaundice, ascites or cirrhosis of the liver. He reported right upper quadrant pain for the past several years, which occurred at least once a week and last up to two days. He also reported vomiting twice a week and nausea not associated with eating. He also reported cyclical diarrhea and constipation. He reported no incapacitating episodes due to hepatitis C, but endorsed fatigue, anorexia and weight loss for several years. The examiner noted the Veteran had maintained a stable weight according to the medical records. He reported that his fatigue and tiredness affect his concentration, and that he has had difficulty maintaining employment. The examiner noted the Veteran had difficulty staying focused during the examination. He did not have hepatosplenomegaly or jaundice on physical examination, but had right upper quadrant tenderness. In October 2009, the Veteran complained of nausea and vomiting four to five times a day the previous two days. He also had mild abdominal pain and dizziness. The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in September 2010. He stated that his hepatitis C caused him to be easily fatigued and confused, due to "mental tiredness." He stated that he would become nauseated after eating, and that he vomited "once and twice a week, if not more on some occasions...[based on] what [he] eats." His nausea and vomiting embarrassed him, as the symptoms would occur at inopportune times, such as during church or on a car ride. He also stated that he has had weeks where he has vomited every day, but that the medication prescribed to alleviate his nausea "attack[ed]" his liver. He stated that he has nausea almost every time he eats, and that fatigue is "a way of life." In January 2011, the Veteran was afforded another VA examination. He complained of right upper quadrant pain for several years, as well as occasional nausea and vomiting at least twice a week. He indicated his nausea and vomiting was not associated with eating. He also reported cyclical diarrhea and constipation. He denied incapacitating episodes secondary to hepatitis C. He also reported anorexia and weight loss for several years, but the examiner noted that he had maintained a steady weight according to the medical records. On physical examination there was no evidence of jaundice, hepatosplenomegaly, ascites, or rebound tenderness. He had tenderness to palpation of the right upper quadrant of the abdomen. Laboratory results from January 2011 were noted to show elevated liver function tests, but the results were lower than in the past. The following weights have been recorded in the Veteran's VA treatment records: Date Weight June 1999 216 lbs. August 1999 237 lbs. (during drug therapy) March 2000 237 lbs. March 2001 231.8 lbs. August 2001 227 lbs. March 2004 214 lbs. January 2005 209.2 lbs. December 2006 191.6 lbs. January 2007 204 lbs. March 2007 202 lbs. March 2008 195.5 lbs. September 2009 198 lbs. January 2011 192 lbs. Notably, the records indicated in December 2006 that the Veteran was intentionally attempting to lose weight, and was working out. His weight loss since January 2007 has not been attributed to an intentional change in diet or exercise. His weight loss has also not been noted to be due to his hepatitis C; however, there has been a roughly ten-pound weight loss since the Veteran filed the current claim on appeal. Based on the forgoing, the Board will resolve reasonable doubt in the Veteran's favor and finds that a 40 percent rating is warranted during this period on appeal. The Veteran has continuously complained of fatigue, confusion (which his treating physician has indicated is likely due to his hepatitis C), and right upper quadrant pain. He has also increasingly complained of nausea and vomiting, with an occasional itchy sensation. Although the weight loss demonstrated by the medical records is minor, and has slightly fluctuated, the Veteran has lost more than 30 lbs. since he began treatment for hepatitis C, and has lost 10 lbs. since he filed the current claim on appeal. Significantly, while the Veteran has not been found to have heptatosplenomegaly during his VA examinations, a March 2008 echocardiogram revealed hepatomegaly. As such, the Board finds that his symptoms more closely approximate a 40 percent rating under Diagnostic Code 7354. The evidence of record does not show that the Veteran has suffered substantial weight loss during his period on appeal. Although he has daily fatigue, there is no evidence of malnutrition or daily anorexia. Additionally, he has denied any incapacitating episodes associated with his hepatitis C. As such, a rating in excess of 40 percent is not warranted. The Board also finds that there is no basis for staging the rating of the Veteran's hepatitis C, pursuant to Hart, and that the claim for a higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). The Board considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed, the above rating criteria reasonably describe the Veteran's disability level and symptomatology resulting from his service-connected hepatitis C. Higher evaluations are available for greater levels of disability. Testing conducted by the SSA revealed the Veteran has some mild memory impairment. The Veteran has complained of itchy skin and right upper quadrant pain. His treating physician has connected his concentration problems to his hepatitis C, and he was noted to be unfocused and agitated during his 2009 VA examination. However, diagnostic code 7354 allows for ratings based on incapacitating episodes. The incapacitating episodes are defined as acute signs and symptoms severe enough to require bed rest and treatment by a physician, but they are also noted to include symptoms "such as" right upper quadrant pain, nausea, vomiting, and anorexia. The use of "such as" in the criteria means that the list is not exclusive, and that other symptoms may be used to show periods of incapacitation, so long as the symptoms result in bed rest and treatment by a physician. The Veteran has denied symptoms of a severity to require bed rest and treatment by a physician. The Veteran has alleged that his hepatitis C makes him unemployable, and his claim for TDIU is addressed in the REMAND section of this opinion. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R.§ 3.321(b)(1) is not warranted. ORDER Entitlement to a rating of 40 percent, and no higher, for hepatitis C is granted. REMAND In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether he is entitled to a total disability rating based on individual unemployability. The Veteran has been previously denied entitlement to TDIU; however, he has since continued to argue that his hepatitis renders him unable to maintain employment. With his new increased hepatitis C rating of 40 percent, and his 10 percent bilateral hearing loss, he has a combined 50 percent rating. As such, the Veteran meet the minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. There remains the possibility, however, that the appellant could receive benefits based on individual unemployability on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) if it is established he is indeed incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disabilities alone. The Board is precluded from assigning a total disability evaluation based on individual unemployability due to service connected disorders on an extraschedular basis in the first instance. Such matters must first be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). The Veteran has argued that the fatigue and confusion associated with his hepatitis C forced him to quit his employment as a postal worker and his employment with a gym. His treating physician has associated his confusion with his hepatitis C. Testing by the SSA found mild memory impairment, and during the 2009 VA examination the Veteran was unfocused. The 2009 VA examiner noted the Veteran's hepatitis C would limit his ability to maintain employment which required strenuous physical activity. During the most recent, 2011, VA examination, the examiner did not comment on the Veteran's employability or the functional impact of his hepatitis C. On remand, the Veteran should be afforded an examination which addresses his employability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran corrective VCAA notice which informs the Veteran of the evidence necessary to establish TDIU, to include extraschedular. 2. The Veteran should be scheduled for a VA examinations to address whether it is at least as likely as not that his service connected disorders alone render him unable to secure and maintain substantially gainful employment. Any examination conducted must describe any functional impairment and the impact of the service connected disorders on physical and sedentary employment. 3. After completion of the above and any additional development deemed necessary, the issue on appeal must be reviewed with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs