Citation Nr: 1803443 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-12 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to a service-connected low back disability. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to a service-connected low back disability. 3. Entitlement to an initial compensable rating for hepatitis C prior to April 9, 2013. 4. Entitlement to a rating in excess of 20 percent for hepatitis C beginning April 9, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from August 1965 to February 1969 and from May 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was most recently remanded by the Board in May 2017. A Supplemental Statement of the Case (SSOC) was issued in August 2017. A review of the record shows that the RO has substantially complied with all remand instructions. Aside from the contentions regarding the competence of the June 2017 peripheral neuropathy examiner and the adequacy of the June 2011 hepatitis C VA examination report and the June 2017 telephonic examination discussed below, the appellant and his representative have not contended otherwise. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board recognizes that consideration of a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009), is part and parcel of a claim for an increased rating, such discussion is moot in the instant case because the appellant is already in receipt of a TDIU, effective August 16, 1979. FINDINGS OF FACT 1. The weight of the evidence is against a finding that peripheral neuropathy of the right lower extremity is causally related to active service or any event therein, or has been caused or aggravated by a service-connected disability, to include a low back disability. 2. The weight of the evidence is against a finding that peripheral neuropathy of the right lower extremity is causally related to active service or any event therein, or has been caused or aggravated by a service-connected disability, to include a low back disability. 3. Prior to April 9, 2013, the appellant's hepatitis C was nonsymptomatic. 4. Beginning April 9, 2013, the appellant's hepatitis C was manifested by no more than daily fatigue, intermittent nausea, and intermittent vomiting. There was no malaise or anorexia, nor was there any dietary restriction or a need for continuous medication. There were no incapacitating episodes severe enough to require bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2017). 3. The criteria for entitlement to an initial compensable rating for hepatitis C, prior to April 9, 2013, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.114, Diagnostic Code 7354 (2017). 4. The criteria for entitlement to a rating in excess of 20 percent for hepatitis C, beginning to April 9, 2013, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.114, Diagnostic Code 7354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) In an October 2017 brief, the appellant's representative argues that the registered nurse who offered the June 2017 peripheral neuropathy opinion was not an appropriate medical examiner and that a neurologist should have proffered such opinion. However, "VA benefits from a [rebuttable] presumption that it has chosen a person who is qualified to provide a medical opinion in a particular case." Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013). "Absent some challenge to the expertise of a VA expert, [there is] no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications." Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). However, this presumption may be rebutted by clear evidence of incompetence. Parks, 716 F.3d at 585 (citing Miley v. Principi, 366 F.3d 1343, 1357 (Fed. Cir. 2004), and Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)). Further, "[g]iven that one part of the presumption of regularity is that the person selected by . . . VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications." Parks, 716 F.3d at 585. In the instant case, however, the appellant and his representative have failed to cite any evidence calling the examiner's competence into question, other than generally citing the examiner's status as a registered nurse and opining that a lower back strain could aggravate the femoral nerves. However, it is the claimant who must first present clear evidence of a VA examiner's incompetence to rebut the presumption of competence. Id. Further, the Board finds that the June 2017 examiner is competent to render the opinions contained in the examination report because such opinions (1) are based on a thorough review of the evidence of record; (2) are well-reasoned, supported by an explanation of the medical principles and current knowledge of the medical community; (3) are consistent with the evidence of record; and (4) there is no evidence, save for the representative's conclusory, generalized statement, that the examiner was not competent to offer such opinions. Thus, the Board finds that such report and opinions are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). There is no evidence that the representative has any sort of medical training, education, or experience. See Id. at 307 (lay persons "are not competent to opine as to medical etiology or render medical opinions"); see also Hyder v. Derwinski, 1 Vet. App. 221, 225 (1991) ("Lay hypothesizing . . . serves no constructive purpose and cannot be considered by the Court [of Appeals for Veterans Claims]."). In any event, as discussed below, with respect to the representative's contention about the femoral nerves and back strain, the June 2017 examiner considered whether the appellant's service-connected back disability caused or aggravated his peripheral neuropathy and provided a negative opinion and the Board finds such opinion is entitled to great probative weight. The representative also argues that the June 2011 hepatitis C VA examination report was inadequate because the "examiner does not note any of the rating criteria nor does he state that the veteran does not have any criteria." It is also contended that the June 2017 telephonic interview was insufficient because the examiner did not take into account that the appellant needed to have his family with him and answer questions on his behalf. However, a review of the report from the examiner reveals that the examiner specifically noted that "[t]he Veteran's family member, with the Veteran agreeing in the background, states on the telephone that his Hepatitis C is dormant and causes him no liver problems." (Emphasis added). The Board has reviewed the medical opinions in question and finds that, as discussed below, the examiners did, in fact, note the appellant's lay reports of symptomatology and take such into consideration when rendering opinions. Further, they provided sufficient information upon which to decide the claim. In the case of the June 2011 examiner, this includes the statement that there were no residuals or complaints regarding hepatitis C. In the case of the June 2017 examiner, this includes the appellant's statement that his hepatitis C was dormant and was causing him no problems. Thus, the Board finds that such reports and opinions are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Neither the appellant nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. III. Service Connection for Bilateral Lower Extremity Peripheral Neuropathy A. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1110. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). B. Analysis The appellant asserts that he is entitled to service connection for bilateral lower extremity peripheral neuropathy based upon (1) direct service connection; (2) secondary to a service-connected back disability; or (3) aggravation by a service-connected back disability. He contends that his peripheral neuropathy of the bilateral lower extremities has been present since he suffered injuries to his bilateral legs while on active duty because he has experienced pain, tingling, and numbness since such injuries. He also contends that his peripheral neuropathy is related to his service-connected low back disability. He is competent to report having right and left lower extremity problems, including pain, numbness, and tingling, during service and since separation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service treatment records from his periods of service, August 1965 to February 1969 and May 1974 to May 1976, are negative for complaints, findings, or diagnoses of peripheral neuropathy of the bilateral lower extremities. However, records from his first period of service show treatment for bilateral leg injuries, including a fracture of the shaft of the right femur, a fracture of the subtrochanteric area of the left femur, a laceration of the right knee, and stiffness of the right knee. Post-service private and VA treatment records show treatment for peripheral neuropathy of the bilateral lower extremities, a low back disability, and variously-diagnosed bilateral leg problems. The appellant's October 1968 medical board examination report states that the appellant's lower extremities were abnormal, with stiffness of the right knee secondary to fracture shaft, right femur, and a fracture of the subtrochanteric area, left femur, healed. The examination was otherwise normal. A May 1972 orthopedic examination report states that the appellant complained of pain in the thighs, hips, low back, and knees. Such pain was dull, aching, and present the majority of the time. Following examination, the diagnosis was residuals of fractures of the bilateral femurs, moderately severe, and low back and knee pain secondary to such residuals. The appellant's January 1974 Report of Medical Examination states that his lower extremities were abnormal, due to (1) fracture, subtrochanteric, left femur, healed with 15 degrees of varus angulation at the fracture site; (2) fracture, shaft, right femur, healed with 7 degrees of varus angulation at fracture site; and (3) limitation of motion of the left knee. Examination was otherwise normal. An August 1976 VA examination report reflects that the appellant had broken both legs and fractured his back in 1968. He also had hypertension and swelling feet. He complained of swelling in his legs and feet and occasional throbbing pain. Range of motion was reduced by 50 percent in flexion but was full in extension. Fabere-Patrick tests were positive bilaterally. The examination was negative for reflex or sensory changes. He was diagnosed with residuals of fractures of the bilateral femurs and back pain secondary to fractured femurs. A December 2010 VA orthopedic examination report includes a notation that the claims file was reviewed. It was noted that the appellant served in the Army from "1965 to 1976" and that he fractured his both femur bones when he fell off a telephone pole in 1968. With respect to his low back disability, the appellant reported that, after his injuries, he continued to experience low back pain which radiated into both of his legs to his knees. The examiner observed that the appellant stood with his back flexed to 30 degrees and that he had no flexion, extension, lateral flexion, or rotation. The appellant had no reflexes in his knees or ankles; and he had patchy decreased pinprick sensation to the bilateral thighs, legs, and feet. The appellant had weak extensor hallucis longus muscle strength. The impression was healed bilateral femur fractures, chronic pain secondary to fractures of the bilateral femurs, and chronic lumbosacral strain. The appellant was afforded another VA examination in March 2011. The claims file was reviewed. It was noted that he was diagnosed with diabetes in the 1970s. He was taking five units of insulin but had taken more in the past. Lumbar spine X-rays in December 2010 showed osteophytes, but were otherwise normal. The appellant reported that he experienced numbness and tingling sensation in the bilateral thighs, which sometimes traveled to the ankles and feet. Such occurred for some time prior to the diagnosis of diabetes mellitus. The examiner opined that it was less likely than not that the appellant's peripheral neuropathy was related to his low back strain and osteophytes because low back strain and osteophytes do not cause peripheral neuropathy. The appellant was afforded a fee basis examination in December 2014. The claims file was reviewed. A 2012 diagnosis of peripheral neuropathy was noted. The appellant reported that he fell 12.5 feet from a telephone pole during active service, which resulted in a mid-shaft femoral fracture. This was subsequently successfully repaired, though he had chronic bilateral leg pain over the years. However, while the examiner offered an opinion as to the etiology of restless leg syndrome, no such opinion was proffered with respect to peripheral neuropathy. A VA medical opinion was obtained in June 2017. The claims file was reviewed. The examiner observed that a December 2000 clinical note stated that there was decreased sensation in both feet and that the appellant was uninterested in smoking cessation. In May 2001, numbness of the feet was denied; and hemoglobin A1C was noted to be at 9.5 percent. In October 2003, the appellant was noted to have diabetes mellitus type II and be on insulin. Such clinical note stated that "noncompliance continues to be a problem with this patient." In January 2004, impaired sensation of the feet was observed during a monofilament examination. The examiner opined that it was less likely than not that the appellant's current bilateral lower extremity peripheral neuropathy was caused by or incurred during active service, to include his in-service bilateral femur fractures. Rather, it was more likely than not that the appellant's peripheral neuropathy was due to decades of poorly-controlled diabetes mellitus. The examiner explained that the appellant suffered from diabetic end-stage renal disease and his peripheral neuropathy was a manifestation of the target organ damage caused by diabetes. It was noted that diabetes is the most common reason for peripheral neuropathy. Further, direct injury to the femoral nerve, such as after the appellant's in-service injury, would have led to immediate neuropathy in 1968. However, there is no evidence of femoral nerve damage from the injury or the surgery during service. The examiner also opined that it was less likely than not that the appellant's peripheral neuropathy was caused by or the result of a service-connected disability, including his back disability, because such neuropathy did not present in a dermatomal pattern as would be experienced from spinal disabilities. Rather, it was more likely than not that such peripheral neuropathy was caused by decades of poorly-controlled diabetes mellitus. The examiner opined that it was less likely than not that the appellant's peripheral neuropathy was aggravated by a service-connected disability, including his back disability, because there was no period of time when the appellant's diabetes was well-controlled, which led to end-stage renal disease. If anything aggravated the appellant's peripheral neuropathy, it was more likely than not the uremic toxins involved in his end-stage renal disease. As noted in the prior Board remands, earlier examination reports exhibit various deficiencies. These include (1) the March 2011 examiner's failure to address direct service connection, aggravation by a service-connected back disability, and the appellant's lay reports of symptomatology; and (2) the December 2014 examiner's failure to offer an opinion regarding the etiology of the bilateral lower extremity peripheral neuropathy. Thus, they are entitled to lesser probative weight. However, the June 2017 medical opinion is entitled to great probative weight because it is well-reasoned, is based upon a review of the medical evidence of record, and addresses all theories of entitlement: direct service connection, secondary service connection, and aggravation. As noted by the June 2017 examiner, it was observed in October 2003 that the appellant was continuously noncompliant regarding his nonservice-connected diabetes mellitus type II. There is no competent medical opinion of record in support of the appellant's bilateral lower extremity peripheral neuropathy being caused by or incurred in the appellant's active service, or caused by, the result of, or aggravated by a service-connected disability. The Board observes that service connection for diabetes mellitus was denied in an unappealed December 2004 rating decision and that the RO denied reopening such claim in an unappealed January 2011 rating decision. The Board has considered the appellant's lay history of symptomatology related to his claimed disorder throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The appellant in this case is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Of the competent opinions of record, the Board finds the June 2017 VA examination report to be the most probative, for the reasons discussed above. Thus, for the foregoing reasons, the Board finds that the preponderance of the evidence is against the appellant's bilateral lower extremity peripheral neuropathy being caused by or incurred in his active service, or caused by, the result of, or aggravated by a service-connected disability. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). IV. Increased Rating for Hepatitis C A. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Hepatitis C is evaluated pursuant to the rating criteria set forth at 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354. Under those criteria, a 0 percent rating is assigned for nonsymptomatic hepatitis C. A 10 percent rating is assigned for hepatitis C 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. A 20 percent rating is assigned for hepatitis C manifested by daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) requiring dietary restriction or continuous medication; or incapacitating episodes of at least two weeks but less than four weeks in the last 12 months. See 38 C.F.R. § 4.114, DC 7354. A rating of 40 percent is assigned where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: 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 rating of 60 percent is assigned where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: 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 rating of 100 percent is assigned where there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection: near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Sequelae, such as cirrhosis or malignancy of the liver, are to be rated under an appropriate diagnostic code, but the same signs and symptoms should not be used as the basis for rating under both diagnostic codes. Id. at Note (1). An "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. at Note (2). B. Analysis The appellant is in receipt of an initial noncompensable rating for hepatitis C prior to April 9, 2013, and a rating of 20 percent thereafter. The appellant was afforded a VA examination in March 2011. The claims file was reviewed. Hepatitis C was diagnosed five to six years prior and was treated with medication. That was the first time he knew anything about hepatitis C. There were no residuals or complaints and he did not have cirrhosis of the liver. A September 2011 clinical note states that the appellant's hepatitis C, secondary to blood transfusion, had never been symptomatic. A January 2013 clinical note states the appellant had never had decompensation of liver disease and had never presented with jaundice, bleeding, fluid overload, or encephalopathy. The appellant stated that he felt okay. He denied hematemesis and ascites. It was noted that he quit smoking and drinking alcohol three to four years prior. In February 2013, a VA nephrologist stated that the appellant's hepatitis C was mild, but provided no discussion of symptomatology or whether continuous medication was require for control. It was noted that the appellant did not use drugs, tobacco, or alcohol. The appellant was afforded a VA examination in April 2013. VA treatment records were reviewed. Continuous medication was not required for liver conditions. Signs and symptoms attributable to chronic or infectious liver diseases included daily fatigue, intermittent nausea, and intermittent vomiting. The appellant had not experienced any incapacitating episodes during the past 12 months which were severe enough to require bed rest and treatment by a physician. There were no signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. He was not a liver transplant candidate, nor was he currently hospitalized awaiting transplant. He had not undergone a liver transplant. He had not experienced an injury to the liver. A December 2012 MRI showed evidence of iron deposition in the liver and spleen; however, it was stable. The appellant's liver condition did not impact his ability to work. An April 2014 clinical note states that the appellant reported some increased fatigue and decreased energy for the past few weeks. He denied weight gain or loss, and also denied nausea or vomiting. In August 2014, the appellant complained of fatigue following dialysis, and decreased balance. A June 2014 clinical note referenced a June 2014 limited abdominal ultrasound revealing that the appellant's liver was of normal size. In a September 2014 informal hearing presentation, the appellant's representative indicated that the appellant asserted that his symptoms of hepatitis C had always consisted of daily fatigue, malaise, weight loss, and incapacitating episodes with fatigue, nausea, vomiting, joint pain, and stomach pain. The appellant was afforded a telephonic interview examination in June 2017. The claims file was reviewed. A family member was on the telephone, and the appellant could be heard agreeing in the background. The appellant and his family member reported that his hepatitis C was dormant and caused him no liver problems. The appellant's concern lay with his ongoing dialysis, which the examiner noted was unrelated to his hepatitis C. Continuous medication was not required for control of liver conditions. The appellant had no signs or symptoms attributable to chronic or infectious liver diseases. The appellant was diagnosed with hepatitis C after a blood transfusion for bilateral femur surgery in May 1968. The appellant had no signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. He was not a liver transplant candidate, he was not currently hospitalized awaiting transplant, he had not undergone a liver transplant, and he had not experienced an injury to the liver. The examiner opined that the appellant's hepatitis C did not affect his ability to work. i. Prior to April 9, 2013 Upon reviewing the record, the Board finds that the preponderance of the evidence is against the award of an initial compensable rating for any portion of the period on appeal prior to April 9, 2013, because his hepatitis C was nonsymptomatic. The March 2011 VA examiner noted that hepatitis C had been diagnosed five to six years earlier and treated with medication. There is no indication that the appellant required continuous medication for hepatitis C at the time of examination and the appellant does not contend otherwise. Rather, such examination was negative for residuals or complaints of hepatitis C. Again, the appellant's hepatitis C was asymptomatic and did not require continuous medication prior to April 9, 2013. There is no competent evidence to the contrary. Indeed, a September 2011 clinical note states that the appellant's hepatitis C had never been symptomatic. The Board observes a January 2013 clinical note discussing the appellant's difficulties in finding a diet that worked for both his diabetes and his kidney disorder. However, such dietary restrictions are not related to his hepatitis C. Rather, both are related to nonservice-connected disorders. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ii. Beginning April 9, 2013 Upon reviewing the record the Board finds that the preponderance of the evidence is against the award of a rating in excess of 20 percent for hepatitis for any portion of the period on appeal beginning April 9, 2013. The use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991); Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for a higher rating to be assigned). A 40 percent rating for hepatitis C requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes having a total duration of at least four weeks ,but less than six weeks, during the past 12-month period. Thus, complaints of daily fatigue alone do not warrant a 40 percent rating. Further, there is no evidence of hepatomegaly during the period on appeal. Rather, a June 2014 ultrasound revealed that the appellant's liver was of normal size. The Board finds that the appellant's symptomatology is not of sufficient severity to more nearly approximate such that is contemplated by a 40 percent rating for any portion of the period on appeal. In a September 2014 informal hearing presentation, the appellant's representative asserted that the symptoms of hepatitis C in this case had always consisted of daily fatigue, malaise, weight loss, and incapacitating episodes with fatigue, nausea, vomiting, joint pain, and stomach pain. However, there is no competent medical evidence that any incapacitating episodes were experienced which required physician-prescribed bedrest. Further, an April 2014 clinical note states that, while the appellant reported some increased fatigue and decreased energy for the past few weeks, he denied weight gain or loss, and also denied nausea or vomiting. With respect to the other claimed symptoms, the Board again observes that the appellant is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual's senses. See Layno, 6 Vet. App. at 470. However, these reported symptoms vary greatly from what was reported in the April 2013 VA examination report, April 2014 clinical note, and the June 2017 VA examination report. Because the April 2013 examination report was based upon a clinical examination of the appellant, the April 2014 clinical note recorded symptoms that the appellant reported and denied, and the June 2017 examination report was based upon a telephonic interview with the appellant and a family member, the Board affords such clinical reports greater weight than the September 2014 informal hearing presentation. Although the evidence of record suggests that the appellant's hepatitis C has improved as such is now asymptomatic, the Board will not disturb the 20 percent rating currently in effect beginning April 9, 2013. In an October 2017 informal hearing presentation, the appellant's representative argues that "[i]t is more likely than not that the veteran has had incapacitating episodes in the past 12 months due to the state he was in for the phone call." The representative also states "[w]here you would be unable to distinguish which symptoms are due to his non-service connected disabilities and which to his hepatitis C this does not fall under pyramiding and can be assumed to be from the hepatitis C as much as his diabetes [sic]." However, no competent evidence is offered to suggest that the appellant was unable to personally speak on the telephone due to his hepatitis C. The evidence of record indicates that he has other disabilities, not all of which are service-connected. Further, the examiner was able to hear the appellant audibly agree with the answers provided by the family member on the telephone. The Board affords the June 2017 examination report great probative weight and observes that there is no competent evidence to the contrary regarding the appellant's symptomatology at the time. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to a service-connected low back disability, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to a service-connected low back disability, is denied. Entitlement to an initial compensable rating for hepatitis C prior to April 9, 2013, is denied. Entitlement to a rating in excess of 20 percent for hepatitis C beginning April 9, 2013, is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs