Citation Nr: 18147646 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 14-25 921 DATE: November 5, 2018 ORDER Entitlement to a compensable initial evaluation for hepatitis C and cirrhosis of the liver is denied. FINDING OF FACT The Veteran’s hepatitis C and cirrhosis of the liver have not caused symptoms such as intermittent fatigue, malaise, and anorexia, or any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). CONCLUSION OF LAW The criteria for a compensable rating for hepatitis C and cirrhosis of the liver have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1969 to November 1970. The claim was previously before the Board in October 2016 when it was remanded for further development. The Veteran seeks entitlement to a compensable initial evaluation for hepatitis C and cirrhosis of the liver. In the February 2013 rating action on appeal, service connection was granted and an initial noncompensable rating assigned, effective July 23, 2010. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran’s disability is evaluated under Diagnostic Code 7354. Under that Code, hepatitis C with 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, warrants assignment of a 10 percent rating. With serologic evidence of hepatitis C infection, and signs and symptoms of 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 20 percent rating is in order. A 40 percent evaluation is assigned 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 evaluation requires 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 evaluation is assigned when there are near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (1) following Diagnostic Code 7354, 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. (See § 4.14) Note (2): For purposes of evaluating conditions under Diagnostic Code 7354, an 'incapacitating episode' means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The Board has also considered Diagnostic Code 7312, which provides ratings for cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. Cirrhosis with symptoms such as weakness, anorexia, abdominal pain, and malaise is rated 10 percent disabling. Cirrhosis with portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss, is rated 30 percent disabling. Cirrhosis with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 50 percent disabling. Cirrhosis with history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks, is rated 70 percent disabling. Cirrhosis with generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 100 percent disabling. A Note to Diagnostic Code 7312 provides that, for rating under Diagnostic Code 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114. For purposes of evaluating conditions, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. The term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. In addition, the term "inability to gain weight" means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and "baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. Medical records dated prior to the appeal period include the report of an October 2008 consultation which included the provider’s impression of hepatitis C. At that time, the Veteran had no features of decompensated liver disease such as ascites, confusion, hematemesis, or melena. His liver was palpable approximately 1 to 2 centimeters below the right costal margin and had a somewhat firm feel. Spleen was not enlarged. Examination of the extremities shows 1+ pitting edema. The Veteran was noted to be active and to work a normal schedule. In a treatment note dated in November 2008 the Veteran was reported to have hepatitis C with low suspicion for cirrhosis. The Veteran underwent a liver biopsy in November 2008 which revealed chronic hepatitis C with moderate portal infiltrate and mild piecemeal necrosis (grade 2) and mildly enlarged fibrotic portal tracts (stage II). In treatment notes, including a note dated in March 2011, the Veteran was reported to have cirrhosis, status post liver biopsy, questionable stage II. In a treatment note dated in December 2011 the Veteran was reported to have a good appetite with weight going down with dieting and exercise. He had no fatigue, weakness, nausea, vomiting, dysphagia, odynophagia, fever, abdominal discomfort or swelling, jaundice, easy bruising, or joint or muscle pain. Urine was yellow and stool was normal. Physical examination revealed that the liver was not enlarged, spleen was not felt, there was no flank bulge, no collaterals or spider angiomata, and no bruising. The Veteran was afforded a VA examination in December 2012 which noted a diagnosis of hepatitis C. A non-VA liver biopsy was noted to be positive for cirrhosis. The Veteran had no signs or symptoms attributable to chronic or infectious liver disease, including fatigue, malaise, anorexia, nausea, vomiting, arthralgia, weight loss, right upper quadrant pain, hepatomegaly, and indications of malnutrition. The Veteran did not have any incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain, due to the liver condition in the past 12 months. The Veteran did not have any signs or symptoms attributable to cirrhosis of the liver, including weakness, anorexia, abdominal pain, malaise, weight loss, ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy, portal hypertension, splenomegaly, and persistent jaundice. The Veteran was noted to have undergone a liver biopsy. He had MELD score and blood testing was performed. The Veteran’s liver condition was noted to not impact his ability to work. In June 2013 the Veteran had a good appetite and weight going down with dieting and exercise. The Veteran had no fatigue, weakness, nausea, vomiting, dysphagia, odynophagia, fever, abdominal discomfort or swelling, jaundice, easy bruising, or joint or muscle pain. Physical examination revealed the liver edge to be firm and nontender. Spleen was not felt. There were no collaterals or ascites. The Veteran had no pedal edema. His legs had chronic venous stasis changes and there were a few small bruises on his arms. In November 2014 the Veteran was noted to have fatty liver on ultrasound. A VA liver conditions disability benefit questionnaire (DBQ) dated in March 2015 noted diagnoses of hepatitic C, cirrhosis of the liver, and thrombocytopenia. The Veteran was noted to be diagnosed with hepatitis C in 2008 by a non-VA provider and with cirrhosis in 2008 by liver biopsy. The Veteran was treated for hepatitis C but the treatment was stopped by the Veteran due to side effects. Cirrhosis was well compensated with no ascites and no esophageal varices. The Veteran had no signs or symptoms attributable to chronic or infectious liver disease. The Veteran did not have any incapacitating episodes. The Veteran did not have any signs or symptoms attributable to cirrhosis of the liver. The Veteran was not a liver transplant candidate, was not hospitalized awaiting transplant, and had not undergone a transplant. The Veteran did not have any injury to the liver. Computed tomography (CT) of the liver revealed cirrhosis. Ultrasound (US) of the liver revealed fatty liver. Esophagogastroduodenoscopy (EGD) showed no varices and no portal gastropathy. Pursuant to the Board remand, the Veteran was afforded a VA examination in March 2017. The Veteran was noted to have been diagnosed with hepatitis C. However, later in the examination report it indicated that the Veteran was not diagnosed with hepatitis C. The Veteran was “hepatitis C status post treatment” with Peginterferon, Ribavirin, and Boceprevir. The Veteran underwent liver biopsy in 2007. The Veteran had an EGD in July 2013 that revealed no varices. An ultrasound of the liver noted no mass lesions demonstrated in the liver. Medication was not required for control of the Veteran’s liver condition. The Veteran did not have signs or symptoms attributable to chronic or infectious liver diseases or cirrhosis. The Veteran was not a liver transplant candidate, was not hospitalized for a transplant, had not undergone a liver transplant, and did not have an injury to the liver. The examiner noted that per liver in 2016 the Veteran cleared the virus for hepatitis C and per imaging the Veteran did not have cirrhosis. The Veteran’s liver disability was noted to not impact the Veteran’s ability to work. Entitlement to a compensable initial evaluation for hepatitis C and cirrhosis of the liver is not warranted. During the period on appeal the Veteran was noted to have spider nevi and, at one-point, pitting edema. However, at no point during the period on appeal did the Veteran’s hepatitis C and cirrhosis of the liver manifest fatigue, malaise, anorexia, nausea, vomiting, or right upper quadrant pain. In addition, at no point during the period on appeal did the Veteran’s liver disability manifest incapacitating episodes. The Board acknowledges that the Veteran was noted to have weight loss. However, these reports were accompanied by an indication that the weight loss was due to diet and exercise. Upon examinations the Veteran was noted to not have any signs or symptoms attributable to chronic liver disease or cirrhosis of the liver. Finally, in the examination report dated in March 2017 the Veteran was noted to have cleared the hepatitis C virus. As such, the medical evidence of record suggests the Veteran’s hepatitis C is not symptomatic. The Board has considered the competent statements of the Veteran as to the extent of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, in evaluating a claim for an increased schedular disability rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While the Veteran is competent to report his various symptoms, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. See Cromley v. Brown, 7 Vet. App. 376 (1995). (Continued on the next page)   In sum, the Board finds that a compensable rating for hepatitis C and cirrhosis of the liver is denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to increased rating. 38 U.S.C. § 5107. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel