Citation Nr: 18157268 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-18 740 DATE: December 13, 2018 ISSUE Entitlement to an initial compensable rating for service-connected hepatitis C. ORDER Entitlement to an initial compensable rating for service-connected hepatitis C is denied. FINDING OF FACT Hepatitis C is manifested by no current signs or symptoms attributable to hepatitis C, and no incapacitating episodes. CONCLUSION OF LAW The criteria for an initial compensable evaluation for hepatitis C have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.114, 4.14, 4.3, 4.7, Diagnostic Code 7345 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to June 1990. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2017. A copy of the hearing transcript has been associated with the claims file. The Board remanded the appeal in June 2018. The Veteran was afforded a new VA examination. The directives have been substantially complied with, and the matter is again before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran was afforded a new July 2018 VA examination to determine the nature and severity of his service-connected hepatitis C. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an initial compensable rating for service-connected hepatitis C The Board incorporates its discussion from the sections above by reference. The Veteran asserts that he endures aches, pains, and fatigue on a daily basis, takes medications and vitamins to compensate for liver impairment, and has reduced stamina. Hepatitis C is currently assigned a noncompensable rating under Diagnostic Code (DC) 7345, which pertains to the digestive system. 38 C.F.R. § 4.114. (2017). Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability rating has not been previously staged. As discussed below, a uniform evaluation is still warranted. Regulations provide that ratings under Diagnostic Codes 7301 through 7329, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. 38 C.F.R. § 4.114. Rather, a single rating will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such elevation. Hepatis C has been rated under Diagnostic Code 7345 which provides ratings for chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C). 38 C.F.R. § 4.114, Diagnostic Code 7345. Under Diagnostic Code 7345, chronic liver disease that is non-symptomatic is rated noncompensable (i.e., 0-percent) disabling. A 10 percent evaluation is assigned in cases of 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 evaluation is assigned in cases 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 40 percent evaluation is assigned in cases of 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 is assigned in cases of 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 in cases of near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (1) in Diagnostic Code 7345 provides that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code but not using the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. (See 38 C.F.R. § 4.14, VA’s anti-pyramiding regulation.). Note (2) in Diagnostic Code 7345 indicates that an “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The Veteran contends that he is entitled to an initial compensable rating for hepatitis C. By way of background, the Veteran filed his initial claim for service connection for a liver disability received by VA on November 21, 2001. A March 2004 VA examination shows that the Veteran was being treated for chronic myelogenous leukemia. There was no mention of any symptoms due to hepatitis C. A December 21, 2004 private treatment record from the University of North Carolina by Dr. M. G. D. shows in part, “History of a hepatitis C antibody detected prior to his diagnosis of CML on routine lab testing or life insurance. This was worked up locally including a live biopsy in Gastonia that showed according to what he was told that his disease was dormant. He has not had any liver problems or elevations of his liver tests that he knows of.” Next, a December 2012 Board Decision and Remand granted service connection for hepatitis C and denied service connection for chronic myelogenous leukemia. Years later, a March 2013 VA examination continued to show that hepatitis C did not require continuous medication for control of symptoms. Upon clinical examination, there were no symptoms attributable to hepatitis C. There were no incapacitating episodes due to the liver condition. Next, the April 2013 rating decision assigned a noncompensable evaluation for hepatitis C. One year later in April 2014, the Veteran through his previous attorney filed a timely Notice of Disagreement (NOD). In May 2015, the Veteran perfected his appeal. He asserted that he is on several experimental drugs and has undergone treatment. He contends that he is entitled to a 60 percent evaluation for hepatitis C. At the January 2017 hearing, the Veteran reported that he is in treatment with various medications. The Veteran testified that he goes through aches, pains, and fatigue on a daily basis. He takes medications and vitamins to compensate for liver impairment. He also has reduced stamina. He contends that his symptoms should entitle him to a compensable evaluation. The Veteran and his representative requested that the case be remanded for a new VA examination, as the Veteran’s symptoms of malaise, fatigue, and body fatigue have worsened, and the last VA examination was four years old. The appeal was subsequently remanded by the Board in June 2018 to afford the Veteran a new VA examination to determine the current severity of hepatitis C in light of his contentions of a worsening condition. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). Next, the Veteran was afforded a July 2018 VA examination with medical opinion. The VA examiner identified hepatitis C with an onset of approximately 1996. Regarding the history of the Veteran’s condition, the VA examination shows: VETERAN STATES HE FOUND OUT HE HAD HEPATITIS C DURING AN INSURANCE PHYSICAL BACK IN ABOUT MARCH OF 1996. HE STATES HE WENT TO A LIVER SPECIALIST FOR BIOPSY 7/26/1996, BUT DIDN'T HAVE TREATMENT UNTIL 2-3 YEARS AGO. VETERAN STATES HE WAS LAST EMPLOYED 2005. WAS TOO TIRED ALL THE TIME. (ALSO CARRIES DIAGNOSIS OF CHRONIC MYELOGENOUS LEUKEMIA). TREATMENT FOR LEUKEMIA IN 1998--HAD TO QUIT WORKING PRIOR TO TREATMENT BECAUSE OF BEING SO TIRED AND WORN OUT. THEN WENT BACK TO WORK FOR A SHORT PERIOD. WAS UNABLE TO TOLERATE FULL TIME WORK WITHOUT REST. HIS ONCOLOGIST PROVIDED A LETTER REQUESTING CONSIDERATION OF SOCIAL SECURITY DISABLITY AT THAT TIME. -----UNRELATED TO HEPATITIS C AND/OR TREATMENT. The VA examiner found that continuous medication is not required for control of the liver conditions. There was no chronic liver disease. There were no incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver conditions during the past 12 months. The July 2018 VA examiner then rendered a medical opinion. She opined: ALT AND AST PREVIOUSLY ELEVATED ARE NOW WITHIN NORMAL LIMITS. HEPATITIS C VIRAL LOAD IS REPORTED BY THE LAB AT <15 AND BY RNA AT UNDETECTED. AT THIS TIME THE VETERAN TAKES NO MEDICATIONS OR TREATMENT FOR HEPATITIS C. THE VBMS CLAIM FILE FAILS TO PROVIDE DOCUMENTATION OF TREATMENT THE VETERAN STATES TOOK PLACE 2-3 YEARS AGO. FURTHER, AN INDIVIDUAL RARELY HAS SYMPTOMS OF HEPATITIS C UNLESS THE DISEASE IS IN ITS INITIAL ACTIVE/FULMINENT PHASE AND THEN USUALLY MILD ENOUGH SO AS NOT TO DEMAND MEDICAL ATTENTION. AT THIS TIME, MOST CASES OF HEPATITIS C ARE DIAGNOSED ON THE BASIS OF SCREENING BLOOD TEST. THERE IS NO EVIDENCE TO SUPPORT HIS CURRENT FATIGUE/MALAISE IS RELATED TO HEPATITIS C AND/OR TREATMENT THEREOF. The November 2018 Informal Hearing Presentation (IHP) shows in part, “The American Legion has nothing further to submit at this time. The American Legion respectfully returns this Veteran’s claim for benefits to the Board, continuing the argument and contentions advanced by the Veteran.” They request that the full benefit of reasonable doubt is afforded to the Veteran. The Veteran and his representative contend that the Veteran is entitled to a compensable rating for hepatitis C. The Veteran seeks higher evaluation for hepatitis C, which is currently assigned a noncompensable rating. DC 7345; 38 C.F.R. § 4.114 (2017). The current rating contemplates no signs or symptoms attributable to hepatitis C, and no incapacitating episodes due to his liver condition. In order to have a compensable rating, there must be symptoms of chronic liver disease without cirrhosis, but 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. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, his lay reports regarding the etiology and to which disease(s) symptoms of lack of stamina and aches may attributed are outweighed by the more probative medical evidence. Although the Veteran reported several symptoms at the January 2017 hearing and that he takes related medications, there was no evidence of this at the most recent July 2018 VA examination. The November 2018 IHP does not directly challenge the recent findings of the July 2018 VA examiner. Here, the most probative evidence is the contemporaneous treatment records and the results of the July 2018 VA examination. The July 2018 VA examination showed no current impairment from hepatitis C. The VA examiner reasoned, “Further, an individual rarely has symptoms of hepatitis c unless the disease is in its initial active/fulminent phase and then usually mild enough so as not to demand medical attention. At this time, most cases of hepatitis c are diagnosed on the basis of screening blood test.” At the most recent VA examination, there was also no evidence of current fatigue/malaise attributable to hepatitis C or related treatment. The Veteran did not report taking related medications. This is consistent with the findings of the previous VA examiners. In addition, the July 2018 VA examination showed possible improvement, “ALT and AST previously elevated are now within normal limits.” 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. However, the Veteran does not have the degree of impairment that would warrant a higher rating. In sum, although we acknowledge the Veteran’s belief that he is entitled to a higher rating, we are bound by the rating criteria for this specific disability. There is no probative evidence to the contrary. We note other factors. Consequently, an initial compensable rating for hepatitis C is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching this conclusion, the Board is sympathetic to the Veteran’s circumstances and the impairment caused by the disability. Unfortunately, the Board finds that the preponderance of the evidence is against this claim, and as such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel