Citation Nr: 1754566 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-06 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating for service-connected hepatitis C in excess of 10 percent effective November 18, 2005, and in excess of 20 percent effective September 14, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for hepatitis C and assigned initial 10 percent and 20 percent ratings, effective November 18, 2005, and September 14, 2011, respectively. The Veteran testified before the undersigned at a December 2014 video-conference hearing. A transcript of the hearing is in the claims file. In June 2015, the Board remanded the Veteran's claim for additional development. The file has now been returned to the Board for further consideration FINDINGS OF FACT 1. For the period dated from November 18, 2005, to September 13, 2011, the Veteran's service-connected hepatitis C was not manifested by 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. 2. Since September 14, 2011, the Veteran's service-connected hepatitis C is not 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. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for service-connected hepatitis C, effective November 18, 2005, for the period dated from November 18, 2005, to September 13, 2011, have not been met. 38 U.S.C. § 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.114, Diagnostic Code (DC) 7354 (2017). 2. The criteria for an initial rating in excess of 20 percent for service-connected hepatitis C, effective September 14, 2011, have not been met. 38 U.S.C. § 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.114, DC 7354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. § 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran's hepatitis C is currently evaluated as 10 percent disabling, effective November 18, 2005, and 20 percent disabling, effective September 14, 2011, under 38 C.F.R. § 4.114, DC 7354. Under this provision, a noncompensable rating is warranted for nonsymptomatic hepatitis. 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. 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. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent rating is warranted for 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 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, DC 7354. Note (2) to the rating criteria defines an "incapacitating episode" as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. The Veteran's VA treatment records dated since November 18, 2005, are silent for any complaints or treatment attributed to hepatitis C, and his treatment providers described his hepatitis C as undetectable. He has been treated by VA over the course of the appeal for a number of complaints and disabilities, including foot, ankle, knee, hip, and lumbar spine disabilities, with physical therapy and surgical treatment, dermatological complaints, urological and prostate disabilities, morbid obesity, psychological complaints, hypertension, vision maintenance, blood sugar monitoring, and herpes. In June 2009, during VA treatment, the Veteran denied gastrointestinal complaints. In an October 2010 Report of Contact, the Veteran reported that he was diagnosed with hepatitis C in 1992 or 1993, and that since time, he underwent unremarkable evaluation every six months. He reported that he had not been symptomatic for some time, and directed VA to review his negative evaluations. On VA examination on September 14, 2011, conducted by a private provider, the Veteran complained that his hepatitis C affected his general body health in that he became tired easily. He reported that he had gained 70 pounds in the last 10 years. He reported fatigability, arthralgia, gastrointestinal disturbances, nausea and vomiting at least twice monthly, a loss of appetite, and frequent abdominal pain, without any incapacitation. The examiner cited results of liver function testing that were normal and noted that there were no laboratory findings of hepatitis C. In his June 2012 Notice of Disagreement (NOD), the Veteran reported that his quality of life since his diagnosis of hepatitis C had "dropped" and his initial assigned disability ratings were not high enough. He reported that he was not undergoing any treatment, just monitoring, for his hepatitis C. In his January 2014 Substantive Appeal, the Veteran reported intermittent liver pain and complained of painful joints, daily fatigue, vomiting, pain in his right side, and nausea. During VA treatment in September 2014, the Veteran sought treatment for knee and general medical issues, and reported that he was generally doing well, working out, and riding his bike, without weight loss. During his December 2014 Board hearing, the Veteran reported that he was employed, that his symptoms related to his hepatitis C were growing worse, and he complained of daily fatigue, malaise, anorexia, vomiting, food sensitivity, dietary restrictions, with the use of medication from 2005 onward. During VA treatment in January 2015, the Veteran's hepatitis C was described as undetectable, he denied gastrointestinal problems, except for dyspepsia, diet dependent. He denied abdominal pain or weight loss, and reported his continued exercise regimen. In February 2015, he had minimal abdominal pain status-post prostate surgery. In April 2015, during VA psychiatric treatment, the Veteran reported that he was worried about his VA claim, and reported that he exercised four times weekly, biking, walking, stretching, and weightlifting, with regular sleep, and full-time employment. In June 2015, during VA cardiac treatment, he was encouraged to continue his exercise regimen. On VA examination in September 2015, the Veteran reported that he had developed daily increasing global joint pain, daily nausea with episodes of vomiting one-to-three times weekly, daily loss of appetite, mild fatigue at the end of his work shift, without treatment with medication. The examiner noted normal testing for liver function and ultrasound of record. The Veteran denied flare-ups, and reported that he would be unable to perform any physical job. He reported that his diet was restricted to chicken and fish, for meat, as other meat produced rapid nausea and vomiting. On physical examination, the examiner noted the Veteran's complaints, nausea, vomiting, arthralgia, right upper quadrant pain, dietary restrictions, incapacitating episodes that occurred less than one week in last 12 months, daily anorexia, daily abdominal pain, and intermittent malaise. For the period dated from November 18, 2005, to September 13, 2011, when the Veteran's hepatitis C was initially rated as 10 percent disabling, there is no evidence that his disability warrants an increased rating. There is no evidence that his disability was manifested by 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, as is contemplated by the rating criteria for a 20 percent rating. There is also no evidence that the Veteran's disability was manifested by more severe symptoms contemplated by the rating criteria for a rating in excess of 20 percent. 38 C.F.R. § 4.114, DC 7354. Prior to the September 2011 VA examination, there is no clinical or lay evidence of any hepatitis C symptoms. Specifically, in his October 2010 Report of Contact, the Veteran reported that he had been asymptomatic for some time. His VA treatment records are silent for any complaints or treatment of symptoms attributed to hepatitis C. To the extent that the Veteran reported long-standing symptoms of hepatitis C, including the use of medication since 2005, during his December 2014 Board hearing, such is not borne by the record. There is no indication that he complained of or was treated for any hepatitis C symptoms or was prescribed medication at any time during the appeal for any hepatitis C symptoms. The Veteran is competent to report his observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, he specifically denied any symptoms prior to the September 2011 VA examination. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the appellant, and the appellant's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996). The Board has considered this inconsistency, his VA treatment records silent for complaint and treatment for hepatitis C symptoms and his October 2010 report that he had been asymptomatic, with his December 2014 report of long-standing hepatitis C symptoms and finds the Veteran's December 2014 report of little probative value, as it lacks credibility. For the period dated since September 14, 2011, when the Veteran's hepatitis C was initially rated as 20 percent disabling, there is no evidence that his disability warrants an increased rating. There is no evidence that his disability 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, as is contemplated by the rating criteria for a 40 percent rating. There is also no evidence that the Veteran's disability is manifested by more severe symptoms contemplated by the rating criteria for a rating in excess of 40 percent. 38 C.F.R. § 4.114, DC 7354. While the Veteran reported hepatitis C symptoms during his September 2011 and September 2015 VA examinations, there is no evidence or assertion that his reported symptoms, including joint pain, nausea with vomiting, fatigue, right upper quadrant pain, and dietary restrictions, are accompanied by hepatomegaly, as is required for a 40 percent rating, an increased rating from the currently assigned 20 percent rating, under the pertinent criteria. Id. While the VA examiner, in September 2011, recorded the Veteran's complaint of loss of appetite, and the VA examiner, in September 2015, noted daily anorexia, no examiner or treatment provider have found hepatomegaly in the Veteran. The Veteran, without evidence of medical training or expertise, is not competent to provide evidence as to more complex medical questions, in this case, whether or not he has hepatomegaly. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran denied incapacitating episodes on VA examination in September 2011, and reported brief incapacitation, of less than one week per year on VA examination in September 2015, and there is no evidence or assertion that his hepatitis C renders him incapacitated for at least four weeks per year, as is required for a 40 percent rating under the pertinent criteria. Id. Accordingly, initial ratings in excess of 10 percent, effective November 18, 2005, and in excess of 20 percent, effective September 14, 2011, for the Veteran's service-connected hepatitis C are not warranted. There is no basis for any further staged rating of the Veteran's disability pursuant to Fenderson, 12 Vet. App. at 126. As the preponderance of the evidence is against assignment of any higher ratings, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. The Board has also considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has reported that he is employed, full-time, and no party asserts that his hepatitis C renders him unemployable. Thus, the Board finds that no further consideration of a TDIU is warranted at this time. ORDER An initial rating for service-connected hepatitis C in excess of 10 percent effective November 18, 2005, and in excess of 20 percent effective September 14, 2011, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs