Citation Nr: 18140137 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 17-50 012 DATE: October 2, 2018 ORDER A rating in excess of 40 percent for hepatitis C is denied. A total disability rating based upon individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s hepatitis C has manifested by hepatomegaly and complaints of fatigue, nausea, arthralgia, and upper right quadrant pain; but has not resulted in incapacitating episodes or anorexia with substantial weight loss (or other indication of malnutrition). 2. The Veteran’s service-connected hepatitis C, his only service-connected disability, is not so severe as to preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for hepatitis C have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.112, 4.114, Diagnostic Code 7354 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1972 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Board notes that, subsequent to the August 2017 statement of the case, the Veteran submitted additional evidence in support of his appeals, to include VA treatment records. As the Veteran’s substantive appeal was received in February 2015 and AOJ consideration of this evidence has not been explicitly requested, a waiver of AOJ consideration is not necessary. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501. Therefore, the Board may properly consider such newly received evidence. 38 C.F.R. § 20.1304 (2017). Finally, the Board notes that it had remanded a claim for service connection for an acquired psychiatric disorder in May 2015 for additional development and readjudication. The agency of original jurisdiction appears to be completing the ordered development for this appeal and it has not been returned to the Board for its consideration. Therefore, the Board does not have jurisdiction over this matter. 1. Hepatitis C The Veteran seeks a rating in excess of 40 percent for hepatitis C. He has generally asserted that his hepatitis C was more severe than reflected in the current rating. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Under Diagnostic Code 7354, when there is serologic evidence of hepatitis B infection, a noncompensable rating is warranted when nonsymptomatic. 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 assigned 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 quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. Following the rating criteria, Note (1) directs to evaluate sequelae, such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. Note (2) provides 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. Id. Additionally, the regulations define “substantial weight loss” as a weight loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. “Minor weight loss” is defined as a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. “Baseline weight” is defined as the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. Given the conjunctive structure of the language used in Diagnostic Code 7354, to prevail, the evidence must establish that the Veteran’s hepatitis C results in (i) daily fatigue, malaise, and anorexia with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or (ii) 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. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (comparing the successive nature of Diagnostic Code 7913 for diabetes mellitus with the non-successive Diagnostic Code 7903 for hypothyroidism). Here, the Veteran’s hepatitis C has been manifested by complaints of intermittent fatigue, nausea, arthralgia, and upper right quadrant pain and hepatomegaly; but has not resulted in incapacitating episodes or anorexia with substantial weight loss (or other indication of malnutrition). See, e.g., VA examinations (February 2015; December 2015) and VA treatment record (May 8, 2017) (showing hepatomegaly). Historically, the Veteran was treated for hepatitis C in 2005. See, e.g., VA treatment record (June 21, 2017). Current records affirmatively show that he has not experienced anorexia with substantial weight loss (or other indication of malnutrition). On the contrary, the evidence shows no abnormal weight loss and that treatment providers have advised the Veteran to lose weight. See VA treatment record (November 11, 2017) (regarding recommended weight loss); see also VA treatment records (September 6, 2012; October 17, 2017) (showing that the Veteran’s weight has ranged from 211 to 214 pounds). Absent evidence of anorexia or substantial weight loss, a 60 percent is only warranted if the evidence shows that the Veteran’s hepatitis C causes incapacitating episodes. While the Veteran’s representative reported that his hepatitis C causes incapacitating episodes of fatigue, the evidence does not establish that the Veteran suffers incapacitating episodes for purposes of evaluating conditions under Diagnostic Code 7354, that is, episodes severe enough to require bed rest and treatment by a physician. See VA Form 9 (October 28, 2017). In this regard, the 2015 VA examination reports show that the Veteran does not suffer incapacitating episodes. Critically, VA treatment records show that the Veteran denied symptoms such as fatigue and are silent as to any no instances of severe enough to require bed rest and treatment by a physician. As a whole, the lay and medical evidence shows an isolated report of incapacitating episodes from the Veteran’s representative, that the Veteran expressly denied fatigue for the purpose of treatment, and that VA examiners found that the Veteran does not suffer incapacitating episodes. The Board finds that the Veteran’s reports to treatment providers and the evaluation of symptoms by treatment providers and VA examiners are more probative that an isolated statement from the Veteran’s representative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Accordingly, the preponderance of evidence shows that the Veteran has not experienced incapacitating episodes for purposes of evaluating conditions under Diagnostic Code 7354. In sum, as the evidence shows that the Veteran’s hepatis C does not manifest with anorexia with substantial weight loss (or other indication of malnutrition) or incapacitating episodes, the next higher rating, a 60 percent is not warranted. 2. TDIU The Veteran’s service-connected hepatitis C, his only service-connected disability, is not so severe as to preclude him from obtaining and retaining substantially gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the evidence shows that the Veteran was treated for hepatitis C in 2005, during which time he described difficulty sleeping due to anxiety. See Statement (December 9, 2014). During the pendency of the appeal, as detailed above, the Veteran’s hepatitis C has manifested by hepatomegaly and complaints of fatigue, nausea, arthralgia, and upper right quadrant pain; but has not resulted in incapacitating episodes or anorexia with substantial weight loss (or other indication of malnutrition). In June 2015, the Veteran resigned from his job as a laborer: citing health reasons. See Resignation letter (June 22, 2015). Thereafter, he filed a claim for a TDIU, explaining that his current and claimed disabilities prevent him from working. See VA Form 8940 (July 29, 2015). In evaluating entitlement to a TDIU, the Board can only consider the impact of the Veteran’s service-connected hepatitis C, as service connection is not in effect for any other disability. The evidence does not show that the Veteran’s hepatitis C was so severe as to preclude him from obtaining and retaining substantially gainful employment consistent with his high school education and prior work as a laborer. Id. Significantly, the Veteran retained employment throughout his hepatitis C treatment in 2005. See, e.g., Statement (December 9, 2014). Since the Veteran filed the 2015 claim on appeal, VA examiners agreed that the Veteran’s hepatitis has not manifested by signs or symptoms that would impair his ability to work. Before and after the Veteran’s attorney reported that he experiences fatigued in his October 2017 substantive appeal, the Veteran denied severe symptoms such as fatigue to treatment providers. See, e.g., VA treatment record (June 21, 2017) (showing that the Veteran reported that he feels fine; suffers no new complaints or worsening; and expressly denied weight loss, loss of appetite, fever, chills, and fatigue). Based on the evidence of record, the Board finds that the service-connected hepatitis has diminished the Veteran’s mental or physical capacity so as to preclude him from obtaining and retaining substantially gainful employment consistent with his high school education and prior work as a laborer. Accordingly, the evidence shows that a TDIU is not warranted. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel