Citation Nr: 1820008 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 13-07 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for Hepatitis C (HC) from December 5, 2011 to June 3, 2014. 2. Entitlement to an evaluation in excess of 40 percent for Hepatitis C (HC) from June 4, 2014 to July 13, 2015. 3. Entitlement to an evaluation in excess of 10 percent for Hepatitis C (HC) from July 14, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Sopko, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). VA granted the Veteran a total disability based upon individual unemployability effective July 8, 2015. FINDINGS OF FACT 1. From December 5, 2011 to June 3, 2014, the Veteran's HC manifested by daily fatigue and malaise. 2. From June 4, 2014 to July 13, 2015, the Veteran's HC manifested by daily fatigue, malaise, and hepatomegaly. 3. From July 14, 2015, the Veteran's HC is manifested by arthralgia. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for HC have not been met from December 5, 2011 to June 3, 2014. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.114, DC 7354 (2017). 2. The criteria for a rating in excess of 40 percent for HC have not been met from June 4, 2014 to July 13, 2015. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.114, DC 7354 (2017). 3. The criteria for a rating in excess of 10 percent for HC have not been met from July 14, 2015. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.114, DC 7354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA compensation examinations in August 2012, July 2015, and August 2017. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims file, and appropriate diagnostic tests. Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (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. 38 C.F.R. § 4.7. III. Hepatitis C (HC) VA has evaluated the Veteran HC under Diagnostic Code (DC) 7354. Under DC 7354, a noncompensable rating applies where HC is nonsymptomatic. A 10 percent rating applies where HC results in 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 applies where HC results in 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 applies where HC results in 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 applies where HC results in 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 applies where HC results in near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Note (1) to DC 7354 directs that sequelae, such as cirrhosis or malignancy of the liver, should be evaluated under an appropriate DC, but the same signs and symptoms should not be used as the basis for evaluation under DC 7354 and under a DC for sequelae. Note (2) to DC 7354 provides that, for purposes of evaluating conditions under DC 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. December 5, 2011 to June 3, 2014 VA has rated the Veteran's HC as 20 percent disabling during this period. This evaluation fully contemplates all of the Veteran's symptoms during this time. The Veteran, in his Notice of Disagreement which VA received in October 2012, stated that he merited a higher rating because he "suffer[ed] from chronic fatigue and malaise." The Board agrees that these symptoms represent his disability picture during this time. However, these symptoms, in the absence of minor weight loss and hepatomegaly, or incapacitating episodes, support only a 20 percent evaluation. The Veteran does not contend, nor does the August 2012 VA examination report or treatment records during the stated time window support, evidence of minor weight loss and hepatomegaly, or incapacitating episodes. June 4, 2014 to July 13, 2015 VA has rated the Veteran's HC as 40 percent disabling during this period. In contrast to the previous period, VA physicians diagnosed hepatomegaly on June 4, 2014. This evaluation fully contemplates all of the Veteran's symptoms during this time. A 60 percent evaluation is not merited during this time because the Veteran did not demonstrate evidence of substantial weight loss in addition to his hepatomegaly, nor did he have incapacitating episodes. From July 14, 2015 VA, based on a May 2017 compensation examination, service connected the Veteran's cirrhosis in August 2017, effective July 14, 2015. It rated the cirrhosis as 30 percent disabling under DC 7312. It divided the symptoms resulting from the cirrhosis from the symptoms resulting from the HC. Specifically, it found that the Veteran's cirrhosis caused portal hypertension, splenomegaly, malaise, and minor weight loss. It also found that the Veteran's HC caused arthralgia. The Veteran has not submitted a Notice of Disagreement with VA's August 2017 decision to divide the symptomatology between DCs 7312 and 7354. Moreover, the Board notes that the finding of arthralgia outside of the context of incapacitating episodes - as required by DC 7354 - is curious and not supported. However, it will not disturb this finding on appeal. Functionally the Veteran's symptoms from HC have not increased in severity since June 4, 2014. The Veteran may confirm this by reviewing the Codesheet accompanying the August 2017 rating decision which shows that his combined disability evaluation remained at 80 percent despite VA's grant of service connection for cirrhosis. The Veteran does not contend, nor does the evidence show, that he merits a higher rating under DC 7354 for this time window. ORDER Entitlement to an evaluation in excess of 20 percent for Hepatitis C (HC) from December 5, 2011 to June 3, 2014 is denied. Entitlement to an evaluation in excess of 40 percent for Hepatitis C (HC) from June 4, 2014 to July 13, 2015 is denied. Entitlement to an evaluation in excess of 10 percent for Hepatitis C (HC) from July 14, 2015 is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs