Citation Nr: 1330467 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 08-12 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 40 percent for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from August 1976 to March 1982. His awards and decorations include the Purple Heart Medal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO granted service connection for hepatitis C and assigned a noncompensable evaluation effective from August 4, 2006. In March 2008, the RO issued a subsequent rating decision that increased the evaluation for the Veteran's hepatitis C to 40 percent effective from August 4, 2006. However, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). In February 2012, the Board remanded the case for further development. After completing the requested development, the Appeals Management Center (AMC) continued to deny the claim (as reflected in an October 2012 supplemental statement of the case (SSOC)) and returned the case to the Board for appellate review. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals VA treatment records and a brief submitted by the Veteran's representative that are relevant to the issues on appeal. The RO considered those additional treatment records and readjudicated the claims in an October 2012 supplemental statement of the case (SSOC). As noted in the prior remand, in a February 2012 written brief presentation, the Veteran's representative raised the issues of entitlement to additional special monthly compensation, entitlement to service connection for diabetes mellitus, and entitlement to increased ratings for residuals of shell fragment wounds to the right upper extremity and lumbar spine disabilities. The issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are again referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's hepatitis C has been manifested by fatigue, malaise, and some hepatomegaly. 2. The Veteran's hepatitis C has not been productive of anorexia, substantial weight loss, or other indication of malnutrition. 3. The Veteran's hepatitis C has not been productive of any incapacitating episodes. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 40 percent for hepatitis C have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.114, Diagnostic Code 7354 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for hepatitis C. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied in this case. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as all identified and available post-service medical records, including Social Security Administration (SSA) records, have been associated with the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue being decided herein. 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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA liver, gallbladder, and pancreas examinations in January 2007 and February 2008 and a VA hepatitis examination in March 2012. In February 2012, the Board remanded the issue to the RO to afford the Veteran an additional VA examination to ascertain the severity and manifestations of his service-connected hepatitis C. Specifically, the examiner was requested to report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In accordance with the remand directives, a VA examination was provided in March 2012. The examiner provided the requested opinions in his report. In an August 2013 written brief, the Veteran's representative contended that the March 2012 VA examination was inadequate because the "most recent medical evidence cited in the examination dates from 2005" and the examiner "apparently neither reviewed the medical records nor the claims file." The Board notes that the examiner specifically indicated that he had reviewed the claims file in his report. With respect to the representative's contentions that the most recent medical evidence cited in the examination report was dated in 2005, the Board finds that this argument is without merit. While the VA examiner noted the results blood work in February 2005 showing the hepatitis C genotype 1A and the results of an August 2005 liver biopsy, he also provided laboratory results dated in November 2011 and December 2011. Additionally, a review of the examination report includes a note stating, "Diagnosis of hepatitis C must be confirmed by recombinant immunoblot assay (RIBA). If this information is of record, repeat RIBA test is not required. If testing has been performed and reflects [the] Veteran's current condition, no further testing is required for this examination report." There was no issue regarding the confirmation of the diagnosis in this case. Moreover, the VA examiner reviewed the Veteran's medical history and complaints and reported the current symptoms that are necessary for rating his disability under the rating criteria, pursuant to the February 2012 remand directives. Therefore, the Board finds that the March 2012 VA examination is adequate for rating purposes. There is also no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected hepatitis C since he was last examined. 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a statement of the case (SOC) and a SSOC, which informed them of the laws and regulations relevant to the Veteran's claim. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, as in this case, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Similarly, where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). In this case, the Veteran's service-connected hepatitis C is currently assigned a 40 percent evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354. Diagnostic Code 7354 provides ratings for signs and symptoms due to hepatitis C infection (non-A and non-B hepatitis). All ratings require serologic evidence of hepatitis C infection. Hepatitis C with 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, is rated 40 percent disabling. Hepatitis C with 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, is rated 60 percent disabling. Hepatitis C with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), is rated 100 percent disabling. 38 C.F.R. § 4.114. Note (1) to Diagnostic Code 7354 provides that sequelae, such as cirrhosis or malignancy of the liver, is to be rated under an appropriate diagnostic code, but not to use the same signs and symptoms as the basis for a rating under Diagnostic Code 7354 and under a diagnostic code for sequelae. See 38 C.F.R. § 4.14. Note (2) provides that, for purposes of rating conditions under Diagnostic Code 7354, 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. For purposes of evaluating conditions in § 4.114, 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. Factual Background and Analysis A VA list of vital signs reveals that the Veteran weighed 213 pounds with a body mass index of 31 in August 2001, which was prior to his diagnosis of hepatitis C. December 2004 VA laboratory reports indicated that the Veteran tested positive for the hepatitis C antibody, and the hepatitis C virus (HCV) UltraQuant blood serum test revealed a viral load of 6,840,000 IU/mL. During a February 2005 VA hepatology consultation, the Veteran denied having depression, fever, anorexia, abdominal distress, nausea, vomiting, weight loss, diarrhea, or jaundice. May 2005 and August 2005 VA hepatology and pre-liver biopsy treatment notes documented that the Veteran had a history of chronic HCV genotype 1a with positive viremia and normal liver function tests with the exception of one reading with a mildly elevated alanine aminotransferase (ALT). A VA list of vital signs reveals that the Veteran weighed 178 pounds with a body mass index of 26 in August 2005 at the time of his liver biopsy. An August 2005 VA liver biopsy procedure note indicated that the Veteran underwent a successful liver biopsy. In August 2005 correspondence to the Veteran, his treating VA gastroenterologist indicated that the liver biopsy showed mild inflammation and mild fibrosis. It was also noted that he had chronic hepatitis, grade two of four (mild chronic active hepatitis) and fibrosis, stage two of four (periportal and septal to septal fibrosis), most likely due to hepatitis C virus. During a November 2005 VA primary care treatment note, the Veteran denied any specific problems or complaints. He indicated that he was not going to pursue treatment for his hepatitis C. A VA list of vital signs reveals that the Veteran weighed 198 pounds with a body mass index of 28 in November 2005. In a December 2005 VA primary care treatment addendum note, the Veteran reported that, although recent laboratory reports indicated that he was pre-diabetic, he had been dieting and he lost 60 pounds in the past year by walking five miles per day. In a December 2005 VA hepatology note, the treating gastroenterologist noted that the liver biopsy showed grade II, stage II chronic hepatitis C. The physician noted that the "risk of treatment in [the Veteran's] condition outw[eighed] the projected benefit." A VA list of vital signs reveals that the Veteran weighed 166 pounds with a body mass index of 24 in October 2006. In an October 2006 VA primary care treatment note, the Veteran reported he had variable benign prostatic hyperplasia (BPH) type symptoms over the past four to five months, but he was otherwise without complaints. He denied fever, nausea, vomiting, and abdominal pain. The examiner noted that the Veteran's liver function tests remained normal. During an October 2006 VA posttraumatic stress disorder (PTSD) examination, the Veteran reported that he discontinued his psychiatric medication due to his hepatitis C diagnosis. In a January 2007 VA liver, gallbladder, and pancreas examination report, the Veteran denied having any incapacitating episodes of hepatitis C that required prescribed bed rest by a physician. He stated that he felt fatigue and malaise "very rarely" because he kept himself active, excercised, monitored his weight, and refrained from smoking, drinking, or using drugs. He denied any episodes of nausea, vomiting, anorexia, or right upper quadrant pain. He indicated that he had arthritis; however, he denied any specific arthralgias. The examiner noted that the Veteran recently had a negative right upper quadrant ultrasound. An examination revealed no evidence of tenderness or organomegaly, ascites or portal hypertension, jaundice, palmar erythema, spider angioma, or muscle wasting or other malnutrition. Laboratory results showed that the Veteran was hepatitis A negative and hepatitis B surface antigen negative. He was diagnosed with the hepatitis C viral antibody in December 2004 with an ultra quant of 6,840,000 IU/mL and HCV genotype 1a on biopsy. In an April 2007 VA primary care treatment note, the Veteran reported he had no new problems or concerns. He denied fever, nausea, vomiting, or abdominal pain. The examiner noted that the Veteran's liver function tests remained normal. A VA list of vital signs reveals that the Veteran weighed 187 pounds with a body mass index of 27 in January 2008. In February 2008 statements, the Veteran reported that he had flu-like symptoms, nausea, vomiting, pain in his right side, weakness, and decreased energy. He indicated that some days he felt too weak to get out of bed. He also stated that his weight had decreased from 219 pounds to 162 pounds. During a February 2008 VA liver, gallbladder, and pancreas examination, the Veteran reported that he had daily fatigue. He indicated that on some days he did not feel like getting out of bed, while on other days, he had "just a generalized fatigue and malaise." He stated that he had some occasional diffuse myalgias and arthralgias, nausea, sharp pain in the right upper quadrant, and weight loss of 20 to 30 pounds at the time of his diagnosis. He indicated that he had gained 15 pounds since that time and stated that he was not anorexic. He denied any incapacitation. He reported that he was unemployed due to a disability from an accident in 1994. He denied taking any specific continuous medication for his liver. A physical examination showed the Veteran was in no acute distress. His abdomen was soft, nontender, and nondistended. There appeared to be some hepatomegaly in the right upper quadrant "in the sense of [the] liver edge being distended to approximately [one centimeter] below the right costal border." The examiner noted that it was nontender to palpation; however, it felt like the liver edge was palpable just below the right costal border. Laboratory tests revealed minimally elevated ALT, AST, and Bilirubin levels. In an April 2008 VA primary care treatment note, the Veteran reported he had cold feet and sleep problems, but he was otherwise without complaints. He denied fever, nausea, vomiting, or abdominal pain. The examiner noted that the Veteran's liver function tests were "minimally elevated." In an October 2008 VA primary care treatment note, the Veteran had no complaints. He denied fever, nausea, vomiting, or abdominal pain. The examiner noted that the Veteran's liver function tests were normal. In a July 2009 VA primary care treatment note, the Veteran reported that he had no complaints. He denied fever, nausea, vomiting, or abdominal pain. The examiner noted that the Veteran's ALT level was minimally elevated, but the remainder of the liver associated laboratory results were normal. In an April 2010 VA primary care treatment note, the Veteran reported that he had no complaints. He weighed 168 pounds, and his body mass index was 24. He denied fever, nausea, vomiting, or abdominal pain. The examiner noted that the Veteran's transaminases were mildly elevated. During a July 2010 VA hepatology consultation, the Veteran reported that he was "very active." He related that he worked on a farm and ran over five miles daily. A November 2011 VA primary care note documented the Veteran's vital signs, including his weight at 173 pounds and body mass index of 25. During a March 2012 VA hepatitis examination, the examiner noted that continuous medication was not required to control the Veteran's liver condition. The Veteran reported that he had near-constant and debilitating fatigue, daily malaise, daily anorexia, daily nausea, intermittent vomiting, intermittent right upper quadrant pain, and weight loss. The examiner reported that the Veteran's baseline weight (the average weight for the two year period preceding the disease) was 190 pounds and his current weight was 159 pounds. He indicated that the weight loss had been sustained for three months or longer. The Veteran denied any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver condition during the past 12 months. Laboratory study results showed that the Veteran had hepatitis C genotype 1A, and hepatitis C viral titers were positive. The examiner opined that the Veteran's liver condition impacted his ability to work due to his constant fatigue and malaise. In an October 2012 statement, the Veteran reported that he had right upper quadrant pain and that he lost 54 pounds and nine to ten inches around his waist since 2008. He indicated that he had daily nausea. He related that he was not taking continuous medication for his condition because the side effects outweighed the possible benefits. At the outset, the Board notes that the Veteran is competent to describe his current symptoms, such as malaise, fatigue, and weight loss. Lay persons are competent to provide testimony as to observable symptoms and manifestations of a disorder. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In order to warrant a higher evaluation, the evidence of record must demonstrate that the Veteran had either 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. Given the evidence of record, the Board notes there are no documented instances of physician-prescribed bed rest throughout the appeal period. Nor has he asserted that he has had incapacitating episodes. Thus, the Veteran did not have any incapacitating episodes during any 12-month period throughout the appeal period, and a higher rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2). Regarding the other criteria under Diagnostic Code 7354, the Board notes that the Veteran reported fatigue and malaise at his VA examinations in January 2007, February 2008, and March 2012. During the January 2007 VA examination, the Veteran stated that he felt fatigue and malaise "very rarely" because he kept himself active, excercised, monitored his weight, and refrained from smoking, drinking, or using drugs. However, during the February 2008 VA examination, he stated that he had daily fatigue and indicated that on some days he did not feel like getting out of bed while, on other days, he had "just a generalized fatigue and malaise." Additionally, during the March 2012 VA examination, he reported that he had near-constant and debilitating fatigue and daily malaise. VA treatment records are negative for any anorexia. In fact, throughout the period on appeal, the Veteran denied having anorexia. There is evidence of weight loss in this case. In a February 2008 statement, the Veteran also reported that his weight had decreased from 219 pounds to 162 pounds during the period on appeal. However, in other statements throughout the course of this appeal, he noted that he lost 60 pounds from dieting and walking five miles per day (see December 2005 statement) and indicated that he was "very active," working on a farm and running over five miles daily (see July 2010 VA hepatology consultation note). Thus, his own statements indicate that the weight loss was not due to his hepatitis C, as he has admitted that he was dieting and exercising to lose such weight. Moreover, during the March 2012 VA examination, the examiner noted that the Veteran's baseline weight was 190 pounds and that he weighed 159 pounds during the examination. However, there was no evidence that this weight loss was actually due to hepatitis as opposed to his own reports of diet and exercice. The evidence also shows that the weight loss not greater than 20 percent of his baseline weight. See 38 C.F.R. § 4.112. The Board notes that, during the February 2008 VA examination, the examiner reported that there appeared to be some hepatomegaly in the right upper quadrant "in the sense of [the] liver edge being distended to approximately [one centimeter] below the right costal border." The examiner noted that it was nontender to palpation; however, it felt like the liver edge was palpable just below the right costal border. Thus, while the Veteran has suffered from daily fatigue and malaise and there is evidence of some hepatomegaly in the right upper quadrant, the evidence does not show that the Veteran has anorexia, any weight loss that is substantial, or other indication of malnutrition. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 40 percent throughout the appeal period. See 38 C.F.R. § 4.114, Diagnostic Code 7354. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's hepatitis C is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaints of fatigue, malaise, and weight loss are fully considered in the assignment of the 40 percent disability rating. Moreover, there are higher ratings available under the diagnostic codes for various symptoms of the disorder, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected hepatitis C under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 40 percent for hepatitis C is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs