Citation Nr: 1330713 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-38 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date prior to July 16, 1999, for the award of service connection for hepatitis C. 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected residuals of vagotomy, peptic ulcer, with hepatitis C, from July 16, 1999, to July 1, 2001. 3. Entitlement to a compensable disability rating for service-connected hepatitis C (formerly characterized as residuals of vagotomy, peptic ulcer, with hepatitis C) from July 2, 2001 to August 13, 2009. 4. Entitlement to a disability rating in excess of 20 percent for service-connected hepatitis C, from August 14, 2009, forward. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to August 1983, and from November 1990 to October 1992, with documented periods of active duty for training at intervals between 1984 and 1989. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions issued in August 2005 and May 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) above. A September 2013 review of the Virtual VA paperless claims processing system reveals an additional document pertinent to the present appeal, consisting of a May 2013 Appellant's Brief, presented by the Veteran's representative. As discussed in detail below, the issue of entitlement to a rating in excess of 20 percent for service-connected hepatitis C from August 14, 2009 forward, 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. FINDINGS OF FACT 1. The Veteran's original service connection claim for a liver disorder was received by VA on July 16, 1999, more than one year after his separation from active duty. 2. In an August 2005 rating decision, the RO awarded service connection for hepatitis C with mild inflammation and stage 1 fibrosis, effective from July 16, 1999; the condition was combined for rating purposes with already service-connected post-operative vagotomy and peptic ulcer. 3. There was no service connection claim for a liver disorder, to include hepatitis C, either formal or informal, filed prior to July 16, 1999. 4. From July 16, 1999, to July 1, 2001, the Veteran's service-connected residuals of vagotomy, peptic ulcer, with hepatitis C were predominately manifested by symptoms analogous to duodenal ulcer with continuous moderate manifestations such as vomiting and abdominal pain, but without evidence of anemia and weight loss (attributable to disability not diet); or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. During this time, the evidence failed to show evidence of liver damage or a confirmed diagnosis of alkaline gastritis or of confirmed persisting diarrhea. 5. Between July 2, 2001 and August 13, 2009, the Veteran's service-connected hepatitis C was manifested by symptoms such as fatigue and malaise, having an approximate total duration of at least one week, but less than two weeks, during any pertinent or past 12 month period. The condition was not manifested by daily symptoms requiring dietary restriction or continuous medication; or by incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 16, 1999, for the establishments of service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 5100, 5101, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2013). 2. From July 16, 1999, to July 1, 2001, the criteria for an initial evaluation in excess of 20 percent for service-connected residuals of vagotomy, peptic ulcer, with hepatitis C are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code (DC) 7399-7305 (2001). 3. From July 2, 2001 to August 13, 2009, the criteria for a separate, 10 percent rating, but no higher, for service-connected hepatitis C have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code (DC) 7354 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Here, the Veteran's claim arises from his disagreement with the initial effective date and disability rating assigned following the grant of service connection for hepatitis C. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In June 2004, prior to the grant of service connection for hepatitis C, the Veteran was provided with adequate VCAA notice concerning his service connection claim, including the criteria to establish an effective date. The Veteran was again notified of such requirements in September 2006, after disputing the initial effective date and rating that was assigned. Therefore, as the Veteran has appealed the initially assigned effective date and disability rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Veteran has not alleged any prejudice as a result of any possible notice defects. Concerning the duty to assist, the Veteran has indicated that all treatment was at VA facilities and the evidentiary record includes VA treatment records dated from 1998 to 2009. As discussed below, the main dispute in the effective date claim is the date on which the Veteran's claim of service connection for hepatitis C was initially received by VA and the date entitlement to that benefit arouse. Likewise, the evidence relevant to the increased rating claim for hepatitis C prior to August 2009 includes records dated from 1999 to 2009, but not thereafter. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in connection with his hepatitis C claim in September 1999, December 2001, and March 2005. There is no allegation or indication that the VA examinations were not adequate for rating purposes. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), (in the absence of a challenge to the adequacy of the examination, the Board is not required to explicitly explain why each medical opinion is adequate). Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected hepatitis C as it includes an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. As such, all rating criteria have been addressed, and the medical evidence of record is sufficient for a fair adjudication of the Veteran's claims. For the foregoing reasons, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage in this case. As such, the Veteran will not be prejudiced by a decision on the merits of his claims. II. Earlier Effective Date prior to July 16, 1999 for Hepatitis C On July 16, 1999, the RO received handwritten correspondence from the Veteran seeking service connection for disabilities involving his bilateral knees and ankles, and depression. He also stated that his liver trouble had worsened and that he should be service connected for it. See July 1999 VA Form 21-4138. The RO accepted the Veteran's July 1999 statement as an informal claim of service connection for a liver disorder. In conjunction with the Veteran's submission of the July 1999 VA Form 21-4138 seeking service connection for liver trouble, he attached various medical records and service personnel records, none of which contain a diagnosis of hepatitis C or any other liver disorder. Also submitted was a copy of a handwritten Report of Contact, dated April 17, 1997, wherein the Veteran lodged a complaint about an orthopedic appointment he attended that same day. The Veteran stated that the examiner was not proficient in examining the injuries affecting his back, both knees, right elbow, arthritis, right ankle, neck, liver and eyes. The Veteran further stated that, when he asked the doctor questions and concerns of injuries sustained in the military, the doctor told him nothing was wrong with him. In an August 2005 rating decision, the RO granted service connection for hepatitis C, assigning an effective date of July 16, 1999. The RO granted service connection for hepatitis C in conjunction with previously service-connected post operative vagotomy and peptic ulcer, as required by the law then in effect which stated that those disabilities must be evaluated as one disability. See 38 C.F.R. § 4.114, Schedule of Ratings for Digestive System, Diagnostic Codes 7345, 7348. A review of evidence dated prior to July 1999 reflects that in August and September 1983, the Veteran submitted a formal claim and written statement seeking service connection for a back and left ring finger disability. In October 1990, the Veteran submitted a formal claim of service connection for ulcers and stomach problems. In December 1992, the Veteran submitted a formal claim of service connection for chronic low back pain, nerve damage, a bilateral ankle disability, and a right arm disability. In December 1993, the RO received handwritten correspondence from the Veteran seeking entitlement to service connection for several disabilities, including those involving his left ankle, left knee, and residuals of vagotomy. In support of his claim, the Veteran stated that he continued to suffer from a build-up of bile, which caused occasional vomiting and reflux problems. Analysis The Veteran contends that an earlier effective date should be assigned for the award of service connection for hepatitis C, maintaining that a service connection claim for hepatitis C was originally filed in 1997 or 1998. See December 2005 Veteran statement. The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Generally, an application for VA compensation must be a specific claim in the form prescribed by the Secretary, i.e., VA Form 21-526. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). However, any communication or action received from the claimant (or specified individuals) that indicates an intent to apply for one or more benefits under the laws administered by VA, and identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Board has reviewed the submissions of the Veteran received prior to July 16, 1999, to determine whether a claim of service connection for hepatitis C was received prior to such date. In doing so, the Board concludes that there is no basis for the assignment of an effective date prior to July 16, 1999, for the grant of service connection for a liver condition, including hepatitis C. Essentially, there was no service connection claim for that condition filed prior to that time. The Veteran has contended that an effective date of 1997 or 1998 should be assigned based on claims reportedly filed at one or both of those times. The U.S. Court of Appeals for Veterans Claims (Court) has made it plain that the date of the filing of a claim is generally controlling in determinations as to effective dates. See Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Hazan v. Gober, 10 Vet. App. 511 (1997); Washington v. Gober, 10 Vet .App. 391 (1997); Wright v. Gober, 10 Vet. App. 343 (1997). In this case, the Veteran has not specifically identified, and the Board has not located, any document which meets the requirements for either a formal or informal claim seeking service connection for a liver disorder, to include hepatitis C, received prior to July 16, 1999. Indeed, as detailed above, review of the record reveals that the Veteran has sought to establish entitlement to various VA benefits, including service connection for a myriad of disabilities, since he was discharged from his first period of active duty service in August 1983; however, at no time prior to July 16, 1999, did he seek to establish service connection for a liver disorder. See informal claims submitted by the Veteran in September 1983, October 1990, December 1992, and December 1993. The record also reflects that prior to July 1999, the Veteran submitted numerous communications to VA inquiring as to the status of his variously claimed conditions and requesting assistance or clarification from VA, as needed. While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Board specifically finds that the April 1997 Report of Contact cannot be construed as a formal or informal claim seeking service connection for a liver disorder, to include hepatitis C. The Veteran's statement related to his dissatisfaction with the examiner's examination of his orthopedic disabilities. He also complained of the VA examiner's response in relation to him asking the doctor questions regarding injuries (eyes and liver) he claimed to have sustained in service. He related that the doctor replied that there was nothing wrong with him. There was nothing in the report of contact which could be construed as the Veteran having an intent to file a claim of service connection for liver disorder, including hepatitis. At most, it showed that he was trying to gathering information from the doctor and that he was not satisfied as to how the VA examiner related to him. In this regard, it is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing); see also King v. Shinseki, 23 Vet. App. 464, 469 (2010). Accordingly, based on review of the evidence of record for the period prior to July 16, 1999, the Board finds the Veteran did not submit any communication indicating an intent to seek VA benefits based upon a liver disorder, to include hepatitis C, until July 16, 1999, when he stated that his liver trouble had worsened and requested that service connection be granted. Based on the foregoing, the Board finds that the Veteran's July 1999 written statement represents the first claim, formal or informal, seeking service connection for a liver disorder, including hepatitis C. This claim was received four years after separation from his last period of active service. Thus, the effective date of service connection for hepatitis C may be no earlier than the initial claim for that disability. See 38 U.S.C.A. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Accordingly, the Board finds that an effective date prior to July 16, 1999, is not warranted for the grant of service connection for hepatitis C, as that is the date of the Veteran's initial claim for service connection for this disability. Therefore, for the foregoing reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date for the grant of service connection for hepatitis C, and, thus, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Initial and Increased Rating Claim As the procedural history of this case is lengthy and somewhat complex, the following summary provides a guide to the pertinent rating actions that have taken place over the course of this appeal period. In a February 1994 rating decision, the RO granted service connection for residuals of vagotomy, peptic ulcer, rated 20 percent disabling, effective from October 3, 1992. The RO granted the initial 20 percent rating pursuant to diagnostic codes, based upon evidence showing the Veteran had a recurrent ulcer with incomplete vagotomy. On July 16, 1999, the Veteran filed a service connection claim for a liver disorder. Ultimately in an August 2005 rating decision, the RO granted service connection for hepatitis C with mild inflammation and stage 1 fibrosis, assigning an effective date of July 16, 1999. For rating purposes, the RO combined the service-connected hepatitis with previously service-connected post operative vagotomy and peptic ulcer, (as required by the law then in effect at that time which stated that those disabilities must be evaluated as one disability; see 38 C.F.R. § 4.114, Schedule of Ratings for Digestive System, Diagnostic Codes 7345, 7348). In this regard, the RO determined that the service-connected vagotomy with peptic ulcer was the predominant disability and, as such, rated the entire disability (service-connected residuals of vagotomy, peptic ulcer, with hepatitis C) 20 percent disabling under DC 7348-7305, effective from July 16, 1999. The August 2005 rating action further provided that effective July 2, 2001, the date the law changed to allow for hepatitis C to be separately rated, the Veteran's hepatitis C was to be assigned a separate, noncompensable disability rating pursuant to DC 7354, see 38 C.F.R. § 4.114, Schedule of Ratings for Digestive System, DC 7354 (2001). In a September 2009 rating decision, the RO increased the Veteran's disability rating for service-connected hepatitis C to 20 percent under DC 7354, effective from August 14, 2009. As it stands the pertinent issues on appeal involve: (1) entitlement to an initial disability rating in excess of 20 percent for service-connected residuals of vagotomy, peptic ulcer, with hepatitis C, from July 16, 1999, to July 1, 2001; (2) entitlement to a compensable disability rating for service-connected hepatitis C (formerly characterized as residuals of vagotomy, peptic ulcer, with hepatitis C) from July 2, 2001 to August 13, 2009; and (3) entitlement to a disability rating in excess of 20 percent for service-connected hepatitis C, from August 14, 2009, forward. As discussed further herein, the third issues requires additional evidentiary development and will be addressed in the Remand below. Pertinent Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or 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. § 1155; 38 C.F.R. §§ 4.1, 4.10. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2013), and to resolve any reasonable doubt regarding the extent of the disability in a veteran's favor, 38 C.F.R. § 4.3 (2013). If there is a question as to which evaluation to apply to the veteran's disability, 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 (2013). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where, as in this case, the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court recently 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that during the course of the appeal, the Schedule of Ratings - Digestive System - Disabilities of the Liver, Diagnostic Codes 7311 to 7354, was amended, effective July 2, 2001. See 66 Fed. Reg. 29486 (2001). In reviewing the Veteran's claim, both the old and new criteria apply, but the substantive new criteria cannot be applied before their effective date of July 2, 2001. In light of these amendments, the Board must evaluate the claim in accordance with the effective dates of the rating criteria, before and as of July 2, 2001. A. Initial Rating in Excess of 20 Percent from July 16, 1999 to July 1, 2001 From July 16, 1999, to July 1, 2001, the Veteran's service-connected hepatitis C was evaluated as 20 percent disabling, considered as a combined disability along with service-connected residuals of vagotomy and peptic ulcer. This combined condition was evaluated during this portion of the appeal period under diagnostic codes 7399-7305; 38 C.F.R. § 4.114 (2001). Prior to July 2, 2001, 38 C.F.R. § 4.114 provided that certain disabilities affecting the digestive system, including duodenal ulcer, infectious hepatitis, and vagotomy with pyloroplasty or gastroenterostomy, were not combined with each other. Instead, a single evaluation was assigned under the diagnostic code which reflects the predominant disability picture. As such, a separate disability rating may not be assigned for hepatitis C, prior to July 2, 2001, as such is precluded by law. Nevertheless, because the Veteran has expressed disagreement with the rating for hepatitis C since entitlement to service connection was established, the Board will determine if a rating higher than 20 percent is warranted for service-connected residuals of vagotomy, peptic ulcer, and hepatitis C prior to July 2, 2001. Prior to July 2001, service-connected residuals of vagotomy, peptic ulcer, and hepatitis C was evaluated as 20 percent disabling under DC 7399-7305. The Veteran's specific disability is not listed on the rating schedule and, thus, the RO evaluated this condition by analogy to duodenal ulcers, under DC 7399-7305. See 38 C.F.R. § 4.27 (unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99." The second diagnostic code is the residual condition on the basis for which the rating is determined); see also 38 C.F.R. § 4.20. The rating criteria for duodenal ulcers (under DC 7305) and vagotomy (under DC 7348) did not change when the rating criteria for evaluating the digestive system were amended, effective July 2, 2001. Under DC 7305, a duodenal ulcer warrants a 10 percent rating when mild with recurring symptoms once or twice yearly; a 20 percent rating when moderate, with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations; a 40 percent rating when moderately severe with symptoms less than "severe" but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year; and a 60 percent rating when severe, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health warrants a 60 percent disability rating. 38 C.F.R. § 4.114. Under DC 7385, vagotomy with pyloroplasty or gastroenterostomy warrants a 20 percent rating with recurrent ulcer and incomplete vagotomy, a 30 percent rating with symptoms and confirmed diagnosis of alkaline gastritis, or of confirmed persisting diarrhea; and a 40 percent rating when followed by demonstrably confirmative post-operative complication of stricture or continuing gastric retention. Prior to July 2, 2001, DC 7345 provided the rating criteria for infectious hepatitis, which assigned a noncompensable evaluation for healed, nonsymptomatic hepatitis; a 10 percent evaluation for hepatitis where there is demonstrable liver damage with mild gastrointestinal disturbance; a 30 percent evaluation for minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures; a 60 percent evaluation for moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression; and a 100 percent evaluation for marked liver damage manifest by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. In evaluating whether a higher rating is warranted for service-connected residuals of vagotomy, peptic ulcer, with hepatitis C is warranted prior to July 2, 2001, the Board notes that the pertinent evidence consists of a July 1999 VA examination of the liver, an October 2000 VA examination of the stomach, and VA outpatient treatment records dated from 1998 to 2001. At the July 1999 VA examination, the Veteran gave a medical history of experiencing vomiting once every three months and abdominal pain once every six months. He also reported a history of fatigue, depression, and anxiety, but he denied having hematemesis or melena. Physical examination revealed weight loss secondary to diet, hematemesis or melena one time in the last year, and right upper quadrant pain that comes and goes. The Veteran denied malnutrition and there was no evidence of ascities. VA treatment records dated from 1998 to 1999 contain essentially no pertinent lay or clinical information regarding the Veteran's hepatitis C, residuals of vagotomy, or peptic ulcer disability. A VA examination of the stomach was conducted in October 2000. The Veteran reported having constant abdominal pain, vomiting at night, and occasional diarrhea. It was noted that the Veteran had been dieting and had gone from 270 to 250 pounds during the past year. There were no signs of anemia. Gastroesophageal reflux disorder was diagnosed. In applying the facts to the rating criteria listed above, the Board finds that from July 1999 to July 2001, the Veteran's service-connected residuals of vagotomy, peptic ulcer, and hepatitis C are most appropriately rated under DC 7399-7305, as the Veteran's ulcer and stomach symtomatology appear to be his predominant disability involving the digestive system during the portion of the appeal period prior to July 2, 1001. Under this code symptoms supporting the assigned 20 percent evaluation during this period are shown. In this regard, the evidence shows the Veteran experienced frequent symptoms of vomiting and abdominal pain, and rare occasions of hematemesis or melena. Essentially such symptoms are indicative of continuous moderate manifestations. However, the criteria for the assignment of a 40 percent rating under this code are not met. The evidence simply does not support findings analogous to duodenal ulcer, with symptoms less than "severe" but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. In this regard, anemia was not shown on examination of 2000, and the Veteran's weight loss was not attributed to a medical condition, but to a conscious choice and effort to diet. Further there was no indication of incapacitating episodes associated with the Veteran's disability occurring an average of 10 days or more in duration at least four or more times a year. As such, diagnostic code 7305 does not assist the Veteran in obtaining a rating higher than 20 percent from July 1999 to July 2001. The Board observes that the pertinent evidence does not show the Veteran's residual vagotomy is manifested by a confirmed diagnosis of alkaline gastritis or of confirmed persisting diarrhea and as such a rating in excess of 20 percent is not warranted under diagnostic code 7385. Likewise, while pertinent evidence does reflect that the Veteran reported experiencing fatigue, depression and anxiety, there is no indication of demonstrable liver damage associated with hepatitis and therefore a rating under diagnostic code 7345 is not the most appropriate in this case, as this was not the predominant disability during the applicable time period. Therefore, based on the foregoing, the Board finds that the Veteran's service-connected residuals of vagotomy, peptic ulcer, and hepatitis C do not warrant an initial evaluation in excess of 20 percent for the portion of the appeal period extending from July 16, 1999 to July1, 2001, and to this extent the appeal is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Compensable Rating from July 2, 2001 to August 13, 2009 Effective July 2, 2001, the Veteran's service-connected hepatitis C was granted a separate, noncompensable rating under DC 7354, as the law allowed for hepatitis C to be rated separately as of that date. See 38 C.F.R. § 4.114, Schedule of Ratings - Digestive System, DC 7354. Under DC 7354, hepatitis C, with serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection, warrants a 10 percent rating for 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. A 40 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or for incapacitating episodes (with symptoms described above) 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 when symptoms include daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent rating is assigned for 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 (2012). Note 1 under DC 7354 states: Evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a diagnostic code sequelae. Note 2 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.112, DC 7354 (2012). The pertinent evidence of record consists of VA examination reports dated December 2001, March 2005, and March 2006, as well as VA treatment records dated from 2001 to 2009. The preponderance of the evidence shows that, since July 2001, the Veteran's service-connected hepatitis C has been confirmed by serological studies and is manifested by occasional reports of right upper quadrant pain and he reports having fatigue. See VA treatment records dated August 2008, November 2006 statement from Dr. H.R., and December 2001 VA examination report. There is no associated weight loss when examined in December 2001. At that time, he was noted to have gained weight as his weight increased from 260 to 268. In November 2006, Dr. H.R. noted Veteran was seeking a higher rating for hepatitis C under the section entitled symptoms it was noted that the Veteran had sores in his scalp, rectal bleeding and weight loss. Reports from 2006 shows that the Veteran was in a weight loss management program. In the program he was instructed to reduce his food intact and to read labels. In August 2009, the Veteran weighted 274 pounds. Given the evidence of record, it is clear that the Veteran does not have any associated weight loss due to his service-connected hepatitis C. Reports from 2009 shows that the Veteran was advised to lose weight. The Veteran has consistently denied experiencing incapacitating episodes, with symptoms of malaise, nausea, vomiting, anorexia, and arthralgias. There is also no evidence of malnutrition, ascites, or hepatomegaly. See VA examination reports dated December 2001 and March 2005; see also December 2001 VA treatment record. There are however, occasional reports of upper quadrant pain and fatigue in the record, although not shown to be occurring on a daily basis. See December 2001 VA examination report; August 2008 VA treatment record. Based on the foregoing, the Board finds that, as of July 2001, the Veteran's service-connected hepatitis C warrants a 10 percent rating under DC 7354, but no higher. However, with respect to the specific symptomatology contemplated by DC 7345, the Board notes that, while the evidence dated from July 2001 contains intermittent/occasional reports of fatigue and right upper quadrant pain, with evidence of weight loss, the evidence does not reflect that the Veteran's symptoms occur on a daily basis; nor does the evidence show the Veteran's hepatitis C is manifested by dietary restriction or continuous medication; or by 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. While it is clear that the Veteran takes numerous medications, as noted in a VA examination reports of 2001, at that time there was no indication that any continuous medication was being taken for hepatitis. A 2005 VA examination report does not indicate that the Veteran was taking any medication for hepatitis and noted that the Veteran was not a candidate for any type of treatment at that time. Accordingly, the Board finds that the Veteran's symptoms most nearly approximate the level of disability contemplated by the assignment of a 10 percent rating, but not greater, under DC 7345, from July 2, 2001, to August 13, 2009, and to this extent the claim is granted. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert, supra. IV. Final Considerations - Extra Schedular Consideration and TDIU The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, as summarized above, the manifestations of the Veteran's service-connected hepatitis C are fully contemplated by the schedular rating criteria. In particular, the Veteran's subjective reports of occasional right upper quadrant pain and fatigue are adequately contemplated by the staged disability ratings assigned herein. As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his disability picture. Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. See Id. Nevertheless, the Board notes that the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The Board has also considered whether a claim for a TDIU has been raised. When evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the record reflects that entitlement to TDIU has been established, effective July 7, 2000. The Board has considered whether a claim for TDIU was raised prior to that date; however, there is no allegation or indication that the Veteran's service-connected hepatitis C rendered him unable to secure or maintain employment prior to July 2000. As to any allegation that the Veteran's hepatitis C had some effect on his employability prior to July 2000, the Board notes that any occupational impairment experienced by the Veteran is contemplated by the disability ratings currently assigned to his service-connected hepatitis C. As such, the evidence does not show that the Veteran is unemployable due to his service-connected hepatitis C, and further discussion of a TDIU is not necessary. ORDER Entitlement to an effective date prior to of July 16, 1999, for the grant of service connection for hepatitis C is denied. From July 16, 1999 to July 1, 2001, an initial disability rating in excess of 20 percent for service-connected residuals of vagotomy, peptic ulcer, with hepatitis C, is denied. From July 2, 2001 to August 13, 2009, a 10 percent rating, but no higher, is granted for service-connected hepatitis C. REMAND The Veteran is seeking a rating in excess of 20 percent for his service-connected hepatitis C, for the portion of the appeal period extending from August 14, 2009, forward. Review of the record reveals that the Veteran was last medical report of record is from 2009. An August 2009 VA treatment record shows that the Veteran was to start hepatitis C treatment the following week. Based on the foregoing, the Board finds that the Veteran's service-connected hepatitis C may have worsened. As such, he should be scheduled for a VA examination. The Board also notes that the Veteran receives treatment for hepatitis C through the VA Medical Center (VAMC) in Alexandria, Louisiana. As noted, the most recent treatment records associated with the claims file are dated in August 2009. Therefore, while on remand, any treatment records from this VA facility, as well as any other facility, dated from August 2009 to the present should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the Alexandria, Louisiana, VA Medical Center (and its inclusive outpatient clinics) dated from August 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should also be given an opportunity to identify all private medical providers who have treated him for hepatitis C. All identified treatment reports should be obtained and associated with the Veteran's claims file. Proper procedures should be followed for any records that cannot be obtained. 3. After completing the above, schedule the Veteran for an appropriate VA examination to evaluate the current nature and severity of his service-connected hepatitis C. Any indicated evaluations, studies, and tests should be conducted. The claims folder must be made available to the examiner for review prior to the examination, and the examination report should reflect that review of the record was accomplished. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected hepatitis C. The presence and frequency of symptoms such as daily fatigue, malaise, and anorexia, weight loss and hepatomegaly should be discussed as should the frequency and duration of any incapacitating episodes, during a past 12-month period. Any dietary restrictions or medications associated with hepatitis should be identified. All opinions expressed must be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's increased rating claim should be readjudicated. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs