Citation Nr: 18145787 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-40 977A DATE: October 30, 2018 ORDER Entitlement to a rating in excess of 40 percent for hepatitis C is denied. FINDING OF FACT The Veteran’s hepatitis C has not manifested daily fatigue, malaise, and anorexia with substantial weight loss and hepatomegaly; or experienced any incapacitating episodes of hepatitis C totaling a duration of a least six weeks during any 12-month period; or experienced near-constant debilitating symptoms of hepatitis C, such as (fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right quadrant pain) for the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for hepatitis C are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 3.102, 4.1, 4.3, 4.6, 4.7, 4.114, Diagnostic Code 7354 (2017). REFERRED The issue of a total disability rating due to individual unemployability (TDIU) due to service connected persistent depressive disorder was raised in a June 2018 submission and is referred to the Agency of Original Jurisdiction (AOJ). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1971 to May 1974. This matter comes before the Board of Veterans’ Appeal (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In April 2018, the Veteran’s attorney requested a 60-day extension of time to submit additional evidence and argument in support of this appeal. The Board granted this request in April 2018. In June 2018, the Veteran’s attorney requested another 60-day extension of time to submit additional evidence and argument in support of this appeal. The Board granted this request in June 2018. In May 2018, the Veteran’s attorney submitted additional evidence in support of this appeal, namely VA treatment records dated through February 2018. He waived initial agency of original jurisdiction (AOJ) consideration of this evidence in a May 2018. In addition, the Veteran’s attorney submitted additional evidence in support of this appeal, namely a June 2018 psychological narrative report and psychiatric/psychological impairment questionnaire in June 2018. The Veteran’s attorney waived AOJ consideration of this newly received evidence in an June 2018 submission. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider such newly received evidence. The Board notes that an August 2017 rating decision granted service connection for persistent depressive disorder with intermittent major depressive episode with current episode and assigned an initial 70 percent rating, effective June 2, 2017. The Veteran filed a notice of disagreement as to the assigned effective date and rating in February 2018. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System (VACOLS) the appeal is still being developed by the AOJ. As a result, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. Analysis Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran seeks a rating in excess of 40 percent for hepatitis C, as rated under Diagnostic Code 7354. 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. The next higher rating, 60 percent, 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). 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. 36 C.F.R. § 4.114. The Veteran’s May 1996 rating decision awarded service connection for hepatitis C and assigned a 30 percent rating effective September 9, 1993. An increase rating from 30 percent to 40 percent occurred in August 2008, effective February 4, 2008. The Veteran asserts a higher rating is warranted and the appeal period before the Board is February 7, 2011, the date the VA received the Veteran’s claim for an increased rating; plus, the one-year “look back” period. See Gaston v. Shinseki, 605 F. 3d 979, 982 (Fed. Cir. 2010); February 2011 Application for Increase Compensation. Regarding the Veteran’s private clinical records, the Veteran raised complaints of fatigue or daily fatigue, malaise, and anorexia in three visits with Dr. R. from February 2010 to December 2016. Specifically, the Veteran reported his “[f]atigue is generally through the day over the past 6-8 weeks…” in February 2012. See February 2012 H. Clinic Medical Records. The second reporting of “occasional fatigue and anorexia” occurred four years later in an April 2016 visit. See April 2016 H. Clinic Medical Records. The third report of “some” fatigue and malaise occurred in a July 2016 visit; but notable, Dr. R. reported “[h]istory of chronic hepatitis C has been cured with no evidence of recurrence.” See July 2016 H. Clinic Medical Records. No reports of hepatomegaly or incapacitating episodes, requiring bed rest with treatment by a physician, exist within Dr. R.’s medical records. See H. Clinic Medical Records. In May 2017, the Veteran transferred medical treatment from Dr. R. to Dr. C. for post-traumatic stress disorder, anxiety and degenerative disc disease. During the Veteran’s initial visit, a notation of hepatitis C is listed as “…received [treatment] for Hep C in 2006 with remission.” See May 2017 Primary Care of T. Medical Records. There are no reports of daily fatigue, malaise, and anorexia with substantial weight loss, along with hepatomegaly, or incapacitating episodes during the Veteran’s treatment by Dr. C. See Primary Care of T. Medical Records. The Veteran made complaints of fatigue, confusion, arthralgia, gastro disturbances and loss of appetite to the June 2011 VA Examiner. The Board notes that the Veteran did not complain of the same symptoms during a May 2011 visit with Dr. R. In contrast, Dr. R. reported the Veteran has “…return[ed] to his normal weight, [and] appetite is good…” See May 2011 H. Clinic Medical Records. Moreover, the Veteran did not report any fatigue, malaise and anorexia in his return visit to Dr. R., in August 2011. The June 2011 VA examiner opined there existed no evidence of malaise or liver enlargement and no current evidence of active or residual hepatitis C. See June 2011 VA Examination. The examiner further opined cirrhosis of the liver, but with an unclear etiology. See Id. In addition, the examiner reported that the Veteran’s condition did not affect his usual occupation or daily activities. The Board finds a rating in excess of 40 percent for the Veteran’s hepatitis C is not warranted at any point during the appeal period. A May 2017 treatment note suggests that the Veteran’s hepatitis was in remission. The Veteran made no assertion and nor does the evidence of record establish daily fatigue, malaise and anorexia with reported hepatomegaly; or any incapacitating episodes (as defined under Diagnostic Code 7354), for at least six weeks during the past 12-month period for a 60 percent rating. Moreover, the required near-constant symptoms (such as fatigue, malaise, nausea, anorexia, arthralgia, and right quadrant pain) of hepatitis C for a 100 percent rating is not present. Neither the Veteran nor his attorney has raised any other issues with regard to the claim, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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 Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s hepatitis C for any time during the appeal period, including the one-year “look back” period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7; see Gaston, supra. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria L. Stephens, Associate Counsel