Citation Nr: 1604085 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 10-20 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for hepatitis C. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1977. By way of history, the Veteran applied for service connection of hepatitis C in July 2003, which the Board granted in February 2008. In a rating decision in April 2008 the RO assigned an initial rating of 10 percent effective retroactively to July 8, 2003, the date of receipt of the claim. Upon the Veteran's disagreement with this initial rating, and receipt of additional evidence, the RO readjudicated the claim in April 2010 and assigned a 20 percent rating effective retroactively from July 8, 2003. Subsequently, the Veteran perfected his appeal to the Board, seeking a higher disability rating. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2013, the Board remanded the increased rating issue for further development. As the requested development was completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In July 2013, the Veteran waived initial RO review of any additionally submitted evidence. In a December 2015 letter, the Veteran was asked if he wished to appoint a new representative and was informed that, if not, his representative would remain the Colorado Division of Veterans Affairs. As the Veteran did not reply, Colorado Division of Veterans Affairs continues to be his representative. This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. FINDING OF FACT The Veteran's hepatitis C is manifested by daily fatigue, malaise, and anorexia without minor or substantial weight loss or incapacitating episodes requiring bed rest and treatment by a physician. CONCLUSION OF LAW The criteria for an initial disability rating higher than 20 percent for hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the Agency of Original Jurisdiction of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The initial rating issue adjudicated herein is a downstream issue from the April 2008 rating decision that initially established service connection for hepatitis C and assigned an initial rating and its effective date. The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), 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. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available treatment records for the Veteran, as well as his service records. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran was also provided with VA examinations including in March 2010 and June 2013. The Veteran does not allege nor does the evidence suggest a material change regarding the hepatitis C since he was last examined by VA in June 2013; therefore, a reexamination is not necessary under 38 C.F.R. § 3.327. The Board finds that the VA examinations in conjunction with the other medical and lay evidence of record are adequate to rate the service-connected hepatitis C. Barr v. Nicholson, 21 Vet. App. 303 (2007). Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In addition, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hepatitis C is rated under Diagnostic Code 7354. Under Diagnostic Code 7354, a 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114 , Diagnostic Code 7354. A 60 percent rating is warranted for 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. Id. 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. 38 C.F.R. § 4.114 , Diagnostic Code 7354. A 20 percent rating is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. A 10 percent rating is warranted 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. Note (1) indicates that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354. Note (2) indicates that, for purposes of evaluating conditions under Diagnostic Code 7354, 'incapacitating episode' means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 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. 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. In addition, the term "inability to gain weight" means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and "baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. Evidence and Analysis With regard to the evidence concerning the Veteran's claim, in an undated statement received shortly after he submitted his service connection claim for hepatitis C in July 2003, the Veteran reported that his symptoms of hepatitis C included tiredness, fatigue, stomach and upper right quadrant pain, sleep disturbances, joint pain, memory problems, and inability to concentrate. A VA liver biopsy in August 2003 shows fibrosis and early regenerative nodule formation. On VA examination in March 2004, the examiner noted that the Veteran was diagnosed with hepatitis C in November 2002 and that since the Veteran started taking medications for hepatitis C his residuals included myalgia, joint aches, headaches, debilitating fatigue, and depression. His weight was 188 pounds. March 2007 VA medical records show that the Veteran's hepatitis C treatment was giving him episodes of arthralgia, myalgia, anxiety, and depression. March 2008 and June 2008 records show that he had arthralgia, myalgia, and neuropathy associated with hepatitis C. In May 2008, he continued to report that his residuals of hepatitis C included arthralgia, myalgia, joint aches, headaches, debilitating fatigue, and depression. He contended that he experienced "near-constant" debilitating symptoms and had daily fatigue, malaise, arthralgia, myalgia, peripheral neuropathy, depression, and right quadrant pain. He also stated he had a substantial weight loss of 40 pounds during treatment and recently lost 20 pounds. On VA examination in March 2010, the examiner noted that the Veteran did not have severe abdominal pain for the past 12 months. He reported having incapacitating episodes every 6 to 8 weeks lasting 7 days during which time he had flare-ups of the condition with worsening symptoms of pain, joint and muscle pain, malaise, depression, with recent weight loss of 30 pounds, which he said he gained back in between flare-ups. The examiner noted that manifestations of the Veteran's liver disease included arthralgia and myalgia and the current symptoms were fatigue, malaise, nausea, vomiting, anorexia, and right upper quadrant pain. Physical examination shows the liver size was normal. The examiner reported that the impression of a March 2009 echocardiogram of the gallbladder was possible slight fatty infiltrates versus hepatocellular disease of the liver and atherosclerosis. The examiner indicated that hepatitis C mildly affected the Veteran's ability to do chores and participate in sports and recreation, and moderately affected his ability to exercise. Hepatitis C did not affect the Veteran's ability to shop; feed, bathe and dress himself; or to attend to the wants of nature. She reviewed the records in conjunction with conducting the examination. In the April 2010 Form 9 Appeal, the Veteran stated that since he began his treatment for hepatitis C his weight fluctuated between 170 and 207 pounds. Since 2003 he has had incapacitating episodes every 4 to 6 weeks, approximating 8 to 9 per year, requiring bedrest for a duration of 7 to 10 days. In June 2010, his representative reiterated that his self-reported hepatitis C symptoms discussed above and added hypothyroidism, high liver enzymes, arthritis, nausea, vomiting, and weight loss of 30 pounds. In June 2013 the Veteran stated that he had incapacitating episodes 3 to 4 times per year, which sometimes lasted for months; that due to hepatitis C treatment he had surgery for anus fissures a couple of years ago and continued to experience discomfort; and that he has skin problems, right knee, and bilateral shoulder problems due to arthralgia and myalgia. VA treatment records in August 2012 show that the Veteran did not have abdominal pain. In April 2013, the records show that there was no significant weight loss or gain as well as no nausea nor abdominal pain. The impression was history of hepatitis C, currently in remission. On VA examination in June 2013, the examiner reviewed the file in conjunction with conducting the examination. She noted that the Veteran reported coming out of the longest episode he has had to date, during which he treated himself for fatigue, malaise, radiating pain, and weight loss of 10 to 12 pounds. He reported experiencing 4 to 6 incapacitating episodes from 2010 to 2013. Although the Veteran described these episodes as being "incapacitating", he admitted that at no time in the last several years did he seek medical treatment for the episodes. The examiner noted that the Veteran's VA treatment records show that he was responding with no new problems. The examination shows that the Veteran's hepatitic C symptoms included fatigue, malaise, nausea, arthralgia, weight loss, and right upper quadrant pain. The examiner determined that the Veteran did not have incapacitating episodes due to his liver condition during the past 12 months and did not have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis. The examiner opined that the Veteran's shoulder tendinitis, meniscal knee injury, and hypothyroidism were unrelated to hepatitis C and determined that the shoulder and knee problems were due to his daily living and recreational activities. As for the Veteran's weight loss, the examiner indicated that from March 2010 to June 2013 the Veteran's average weight was 186 and currently he weighed 179.5 pounds. The examiner noted that the Veteran's average weight in 2000, prior to his hepatitis C diagnosis was 196 pounds and thus his weight loss would still be less than 10 percent of his baseline weight. The examiner reiterated that the Veteran did not have incapacitating episodes and that this matter was thoroughly reviewed with the Veteran during the examination. As for the Veteran's weight loss, on October 30, 2000 he weighed 195 pounds, which is 2 years prior to his diagnosis of hepatitis C in November 2002. On October 22, 2002 he weighed 198 pounds. Minor weight loss in this case would consequently be a minimum of 20 pounds. In January 2004 he weighed 191 pounds and in March 2005 he weighed 183 pounds. On September 15, 2004 the Veteran weighed 170 pounds and on December 28, 2004 he weighed 184 pounds. From January 2008 to June 2008 the weight ranged from 188 to 2010 pounds. From October 2008 to March 2010 it ranged from 183 to 207 pounds; from February 2009 to July 2010 it ranged from 179 to 207 pounds; from July 2010 to November 2010 it ranged from 178 to 186 pounds; from August 2010 to March 2011 it ranged from 175 to 193 pounds; from November 2010 to July 2011 it ranged from 186 to 195 pounds; from March 2011 to February 2012 it ranged from 189 to 195 pounds; from March 2011 to February 2012 it ranged from 189 to 195 pounds; and from February 2012 to August 2013, it ranged from 179 to 189 pounds. Other reported weight ranges show that from March 2008 to February 2009 the weight ranged from 188 to 209 pounds and from June 2008 to September 2009 from 183 to 207 pounds. In light of the above, the evidence does not more nearly approximate the criteria for a 40 percent rating for hepatitis C. The Veteran's hepatitis C symptoms are consistent with daily fatigue and malaise. In addition, the Veteran likely experiences incapacitating episodes occurring 4 to 6 times per year. While the episodes require self-imposed bed rest, the Veteran has not otherwise reported, nor does the evidence reflect, that the episodes require treatment from a physician. As the Veteran is currently in receipt of a 20 percent disability rating for his hepatitis C, to warrant an increase to the next higher, or 40 percent, rating, the evidence would need to show 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. The evidence discussed above does not more nearly approximate the first criteria for a 40 percent rating under Diagnostic Code 7354 as the Veteran does not have daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly. While the Veteran has daily fatigue, malaise, and anorexia, his baseline weight 2 years prior to the onset of hepatitis C was 195 pounds, with a baseline weight average of 196 pounds 2 years prior to the onset of hepatitis C. See October 2000 medical record and June 2013 VA examination. A 10 percent fluctuation would approximately be 20 pounds. The evidence presented above shows instances when the Veteran weighed 175 pounds or less as VA treatment records show 170 pounds in September 2004 followed by 184 pounds in December 2004 and VA treatment records show a weight of 175 pounds on August 31, 2010 followed by a weight of 186 pounds on November 12, 2010. As for the latter the Veteran did not sustain a 10 percent weight loss from his baseline weight for a three month period as required by 38 C.F.R. § 4.112. Although it is not entirely clear whether he was able to sustain his weight of 170 pounds recorded on September 15, 2004 for three months, given that he weighed 184 pounds on December 28, 2004 the criteria for a 10 percent or higher weight fluctuation is not more nearly approximated. Further, during the appeal period the Veteran did not have hepatomegaly as his liver was normal. See, e.g, August 2003 liver biopsy and March 2010 VA examination. As for the second criteria for a 40 percent rating under Diagnostic Code 7354, the Veteran's reported incapacitating episodes, in which he took to bed to rest but was not treated by a physician, as discussed above, do not meet the definition of "incapacitating episodes" per Note 2 of 38 C.F.R. § 4.114, Diagnostic Code 7354 (i.e., symptoms severe enough to require bed rest and treatment by a physician). Additionally, the Board notes that a 60 percent rating is also not warranted because while the Veteran does experience daily fatigue and malaise his hepatitis C is not otherwise manifested by anorexia with substantial weight loss (or other indication of malnutrition), hepatomegaly, or; as discussed above, incapacitating episodes as defined at Note 2 of 38 C.F.R. § 4.114, Diagnostic Code 7354. Furthermore, a 100 percent rating is also not warranted because the evidence does not reflect near-constant debilitating symptoms as the evidence shows the Veteran was able to pursue his daily activities with mostly no effect on his daily activities, was not treated by a physician, and recent treatment records show periods of hepatitis C remission. See March 2010 VA examination, June 2013 VA examination, and April 2013 VA treatment record. As such, the evidence does not support a rating of 100 percent for hepatitis C. The Board has also considered Note 1 of 38 C.F.R. § 4.114, Diagnostic Code 7354 which instructs adjudicators to evaluate sequelae, such as cirrhosis or malignancy of the liver. While an August 2003 liver biopsy shows nodule formation, the Veteran has not been diagnosed with cirrhosis or malignancy of the liver. Although, the evidence shows that arthralgia, myalgia, neuropathy and depression have been associated with the Veteran's hepatitis C, further consideration of this symptomatology is not warranted as he is in receipt of separate ratings for depression, low back pain with spondylosis, prostatitis, peripheral neuropathy of the upper and lower extremities, and fracture of the second left metacarpal. Thus, any additional ratings for these symptoms would constitute pyramiding as he would be compensated twice for the same symptomatology. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). The Board has also considered the Veteran's lay statements that describe his fatigue, pain, discomfort, and contentions that headaches, anal fissures, hypothyroidism, skin problems, right knee and shoulder problems are associated with hepatitis C. While the Veteran is certainly competent to describe his observations, the Board finds the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support an initial rating higher than 20 percent for hepatitis C nor any additional separate ratings. To the extent that the Veteran contends that the complications discussed above are associated with his hepatitis C, neither the March 2010 VA examiner nor the June 2013 VA examiner nor any other medical examiner in listing the Veteran's manifestations of hepatitis C attributed these claimed conditions to hepatitis C. On the contrary, the June 2013 VA examiner made a specific determination that the knee, shoulders, and hypothyroidism were not a manifestation of hepatitis C. Other than the Veteran's bare allegations, the record does not indicate that his hepatitis C is manifested by headaches, anal fissures, hypothyroidism, skin problems, right knee and shoulder problems. In essence, the lay evidence, while accepted as credible, does not provide a basis for higher or additional evaluations. Finally, the Court has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, the RO in the May 2009 rating decision granted TDIU. The Veteran did not initiate an appeal with respect to the effective date assigned for the grant of TDIU and has provided no additional argument on this issue. Thus, this issue is not in appellate status. As the criteria for an initial rating higher than 20 percent for hepatitis C have not been demonstrated, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration The Board does have the authority to decide whether the claim should be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. However, the threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is thus adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected hepatitis C. The Board finds that the Veteran's service-connected hepatitis C is manifested by daily fatigue, malaise, arthralgia, nausea, vomiting, anorexia and right upper quadrant pain. These symptoms are addressed in the rating schedule under Diagnostic Code 7354. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An initial disability rating higher than 20 percent for residuals of hepatitis C is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs