Citation Nr: 1647162 Decision Date: 12/16/16 Archive Date: 12/30/16 DOCKET NO. 14-15 704A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable rating for Hepatitis B. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active service from August 1953 to July 1955. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In August 2016, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. As noted in the August 2016 Board Remand, the Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran has retired and is no longer working. He has not alleged that his service-connected disability prevents him from obtaining or maintaining substantially gainful employment. The matter is not raised by the record. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's Hepatitis B is not manifested by 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. CONCLUSION OF LAW The criteria for a compensable rating for Hepatitis B are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.112, 4.114, Diagnostic Code 7354 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). In a claim for an increased evaluation, the VCAA requires generic notice, that is, namely, information sent to the Veteran indicating that he or she must submit evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2010 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran and VA's respective duties for obtaining evidence. In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C. A. § 5103A. VA has associated service treatment records and post-service VA medical records with the claims folder. Additionally, the Veteran was afforded VA examinations. Virtual VA and VBMS records have been reviewed. The Veteran's claim was remanded in August 2016, at which time the RO was instructed to obtain any updated treatment records and afford the Veteran a VA examination. Additional VA treatment records were associated with the claims file and the Veteran was afforded a VA examination in August 2016. The Board finds that the AOJ substantially complied with the remand orders such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. A. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim. II. Entitlement to a Compensable Rating for Hepatitis B Service connection for Hepatitis B was established by a February 2007 rating decision, at which time a noncompensable rating was assigned, effective from July 2006. The Veteran submitted a claim for an increased rating in July 2010. Applicable Laws Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran is rated under 38 C.F.R. § 4.114, Diagnostic Code 7354. A noncompensable rating is warranted when the Veteran is nonsymptomatic. See 38 C.F.R. § 4.114, Diagnostic Code 7354 (2015). A rating of 10 percent is warranted when there is 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. Id. A rating of 20 percent 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 40 percent rating is warranted when Hepatitis B is manifested by 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. Id. A rating of 60 percent is warranted when Hepatitis B is manifested by daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and 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 rating of 100 percent is warranted when Hepatitis B is manifested by near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Sequelae, such as cirrhosis or malignancy of the liver are to be rated under an appropriate diagnostic code, but the same signs and symptoms are not to be used as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (1) (2015). 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. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2) (2015). Facts & Analysis The Veteran was afforded a VA examination in August 2010. It was noted that he was not currently receiving treatment and had not had any incapacitating episodes in the last 12 months. There were no noted current symptoms and no extra hepatic manifestations of liver disease. There was no noted weight change, malnutrition or other evidence of liver disease. The Veteran submitted a notice of disagreement in July 2011, indicating that he suffers from symptoms of intermittent fatigue, malaise, and anorexia, or incapacitating episodes of diarrhea since he was diagnosed. VA treatment records were reviewed. An April 2014 VA treatment note indicates the Veteran complained of occasional dizziness and feeling tired. He reported he was eating better, however, and had a better appetite. A July 2016 treatment note reports that the Veteran had experienced an 11-pound weight loss over the prior six months. It was noted that the Veteran complained of a recent virus that had caused fever and general malaise, but he was feeling better. The Veteran indicated that he had a poor appetite and had been eating small portions, but he had no constipation, rectal bleeding or abdominal pain or discomfort. It was noted that all lab results were found within the expected limit, and he had no metabolic disorders. The Veteran was afforded a VA examination in August 2016. It was noted the Veteran did not require continuous medication for his Hepatitis B. The examiner indicated that the Veteran did not currently have any signs or symptoms attributable to chronic or infectious liver disease. The Veteran did not have any incapacitating episodes due to a liver condition in the past 12 months. The examiner indicated that the Veteran's Hepatitis B did not affect his ability to work. After reviewing the evidence of record, unfortunately, a compensable rating under Diagnostic Code 7354 is not warranted because the Veteran has not experienced intermittent fatigue, malaise, and anorexia.; Importantly, although the Veteran submitted a statement indicating that he suffers from intermittent fatigue, malaise, and anorexia, or incapacitating episodes of diarrhea since he was diagnosed, there is no evidence in the treatment records that the Veteran has had these symptoms as a result of his Hepatitis B. In fact, during the two VA examinations, the Veteran denied having any symptoms. Although the Veteran experienced some episodes of fatigue, malaise and anorexia, as noted in the VA treatment records, at no time were these symptoms associated with his Hepatitis B. As such, the Board finds that the Veteran does not exhibit the symptoms necessary to warrant a compensable rating. The Veteran has submitted laboratory reports on multiple occasions indicating that he has active Hepatitis B. The Board does not dispute that the Veteran is diagnosed with Hepatitis B. Additionally, although the Veteran is competent to report his Hepatitis B symptoms because this requires only personal knowledge as it comes to him through his senses, the clinical evidence of record does not indicate that the assignment of any increased evaluation is warranted. The Board finds that the Veteran's statements indicating that he experiences fatigue, malaise and anorexia as a result of his Hepatitis B are not credible, as he denied having these symptoms at two VA examinations. Furthermore, there is no evidence in the treatment records that he experiences any symptoms as a result of his Hepatitis B. In fact, the Veteran was specifically noted to not have fatigue on multiple VA treatment notes. See i.e., April 2014, October 2014, and January 2016 VA treatment notes. Thus, evidence of increased Hepatitis B symptomatology has not been established, either through medical or lay evidence. The Board has also considered the application of additional Diagnostic Codes, including Diagnostic Code 7312 for cirrhosis of the liver. To warrant a rating of 10 percent, under Diagnostic Code 7312, there must be cirrhosis of the liver with symptoms such as weakness, anorexia, abdominal pain, and malaise. See 38 C.F.R. § 4.114, Diagnostic Code 7312 (2015). However, the Board notes that the Veteran was not diagnosed with cirrhosis and there are no reports of abdominal pain. For all the foregoing reasons, the Veteran's claim for entitlement to a compensable rating for Hepatitis B must be denied. Extraschedular Evaluation The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's Hepatitis B are inadequate. A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criterion reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluations for the disabilities are inadequate (which they manifestly are not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Additionally, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is not warranted. ORDER Entitlement to a compensable rating for Hepatitis B is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs