Citation Nr: 1827975 Decision Date: 05/07/18 Archive Date: 05/18/18 DOCKET NO. 14-31 683A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether the reduction in the disability rating for degenerative disc disease (DDD) and stenosis of the lumbar spine from 40 percent to 20 percent from February 8, 2012 through March 10, 2015 was proper. 2. Whether the reduction in the disability rating for left sciatic radiculopathy from 20 percent to 10 percent from February 8, 2012 through March 10, 2015 was proper. 3. Entitlement to an effective date prior to August 3, 2009 for the grant of service connection for hepatitis C. 4. Entitlement to an initial rating in excess of 20 percent prior to March 11, 2015 for hepatitis C. 5. Entitlement to an initial rating in excess of 30 prior to January 26, 2012, 50 percent prior to March 11, 2015 and 70 percent thereafter for cirrhosis of the liver due to hepatitis C. 6. Entitlement to special monthly compensation (SMC) based on housebound status pursuant to 38 U.S.C. § 1114(s) prior to March 11, 2015. REPRESENTATION Appellant represented by: Daniel Francis Smith, Attorney at Law ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty May 1974 to April 1977. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from June 2011 and November 2012 rating decisions by the Denver, Colorado Regional Office (RO) of the Department of Veterans Affairs (VA). In the June 2011 rating decision, the RO granted service connection for hepatitis C with a 10 percent initial rating from August 3, 2009. The Veteran timely appealed the initial rating assigned. In September 2012, the RO granted a 20 percent initial rating for hepatitis C, also effective August 3, 2009, and a separate rating for cirrhosis of the liver due to hepatitis C with a 30 percent initial rating from July 6, 2011. As higher schedular ratings are available, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In the November 2012 rating decision, the RO reduced the rating for lumbar DDD and stenosis from 40 percent to 20 percent from February 8, 2012 and for left sciatic radiculopathy from 20 percent to 10 percent from February 8, 2012. The Veteran timely appealed the rating reductions. In February 2016, the RO granted a 100 percent (total) rating for hepatitis C from March 11, 2015; a 70 percent rating for cirrhosis of the liver from March 11, 2015, a 40 percent rating lumbar DDD and stenosis from March 11, 2015; and a 20 percent rating for left sciatic radiculopathy from March 11, 2015. The Board has recharacterized the hepatitis C claim to reflect the less than total rating remaining at issue. Id. The issue of entitlement to special monthly compensation (SMC) has been raised by the instant decision resulting in a 100 percent rating for hepatitis C. 38 U.S.C. § 1114(s). SMC benefits "are to be accorded when a veteran becomes eligible, without need for a separate claim." Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)). This issue is therefore listed on the title page. FINDINGS OF FACT 1. The reduction in the lumbar DDD and stenosis disability rating from 40 percent to 20 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work. 2. The reduction in the left sciatic radiculopathy from 20 percent to 10 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work. 3. The claim of service connection for hepatitis C was received on August 3, 2009; there is no evidence of any unadjudicated formal or informal claim of service connection for hepatitis C prior to August 3, 2009. 4. From the August 3, 2009 date of service connection until March 11, 2015, the evidence is at least evenly balanced as to whether symptoms attributable to the Veteran's hepatitis C disability picture more nearly approximated near-constant debilitating fatigue, malaise and pruritus, among other symptoms due to hepatitis C infection. 5. From July 6, 2011, the evidence is at least evenly balanced as to whether symptoms attributable to cirrhosis of the liver due to hepatitis C more nearly approximated a 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. 6. From August 3, 2009, the Veteran had a service-connected disability rated as total and additional separate and distinct service-connected disability or disabilities ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The reduction in the lumbar DDD and stenosis disability rating from 40 percent to 20 percent from February 8, 2012 was not proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344 (2017). 2. The reduction in the left sciatic radiculopathy from 20 percent to 10 percent from February 8, 2012 was not proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344 (2017). 3. The criteria for an effective date earlier than August 3, 2009 for the award of service connection for hepatitis C are not met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015), 3.400 (2017). 4. From the August 3, 2009 date of service connection, the criteria for a 100 percent rating for hepatitis C have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1- 4.7, 4.14, 4.114, Diagnostic Code (DC) 7354 (2017). 5. From July 6, 2011, the criteria for a 70 percent rating, but no higher, for cirrhosis of the liver due to hepatitis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1- 4.7, 4.14, 4.114, DC 7312 (2017). 6. From August 3, 2009, the criteria for SMC pursuant to 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative has raised any specific issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The instant decision is favorable to the Veteran and a remand would not raise any reasonable possibility of substantiating entitlement to additional benefits than those granted in the instant decision. Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant"); see also Scott, 789 F.3d at 1381 (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"); 38 C.F.R. § 3.159(d). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. II. Rating Reductions Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e). However, VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the overall amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). In this case, no reduction notification procedures were undertaken, but the Board finds that none were required, as the overall compensation paid to the Veteran remained the same. See 38 C.F.R. § 3.105(e); VAOPGCPREC 71-91 (Nov. 1991); 57 Fed. Reg. 2,316 (1992). The provisions of 38 C.F.R. § 3.344(a), (b) prescribe additional requirements for rating reductions but only apply to ratings that have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). At the time of the November 2012 reduction, the 40 percent rating for lumbar DDD and stenosis and 20 percent rating for left sciatic radiculopathy had been in effect since July 2009. As these ratings had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a), (b), which provide additional regulatory hurdles to rating reductions, do not apply. Nevertheless, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). With respect to ratings that have been in effect for less than 5 years, as in this case, 38 C.F.R. § 3.344(c) requires improvement before a rating is reduced. Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the rating. In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction is warranted by the evidence. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. In light of the above evidence, the Board finds that the reductions in the disability ratings for the Veteran's lumbar DDD and stenosis and for left sciatic radiculopathy were not proper. The November 2012 rating decision which reduced the disability ratings demonstrates that the RO appears to have essentially analyzed the issues of reductions in the same manner as it would analyze an increased rating claim. Specifically, the RO did not address whether there was an "actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." Id. The medical and lay evidence from February 2012 does not affirm a sustained improvement in either disability. The Board does not find the February 2012 VA examination report persuasive since the examiner did not identify an improvement in daily function for either disability or otherwise clearly indicate these disabilities had and were clinically expected to improve. Overall, the evidence does not reflect that there was any improvement in the Veteran's ability to function under the ordinary conditions of life and work due to less severe lumbar spine or left sciatic radiculopathy symptoms at the time of the November 2012 reductions. As noted, the circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For the foregoing reasons, the reductions in the disability ratings for the Veteran's lumbar DDD and stenosis and for left sciatic radiculopathy were not proper. This renders the reductions from 40 percent to 20 percent for lumbar DDD and stenosis and from 20 percent to 10 percent for left sciatic radiculopathy void ab initio. Kitchens, 7 Vet. App. at 320; Dofflemeyer, 2 Vet. App. at 277. Accordingly, under these circumstances, the previously assigned 40 percent rating for the Veteran's lumbar DDD and stenosis must be restored, effective February 8, 2012 and the previously assigned 20 percent rating for the Veteran's left sciatic radiculopathy must be restored, effective February 8, 2012. III. Effective date prior to August 3, 2009 for service connection for hepatitis C. Initially, the Board notes that the Veteran's September 2011 notice of disagreement (NOD) was ambiguous as to whether he appealed the effective date assigned in connection with the grant of service connection in addition to the initial rating. Although a broad or general NOD does not limit the issues on appeal but puts the entire RO decision before the Board, a specific NOD can limit the Board's consideration on appeal to certain matters. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000) ("[A] narrow or specific NOD may limit the jurisdiction of the reviewing court to the specific elements of the disability request contested in the NOD."); Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998) (holding that an NOD that expressed disagreement only as to the assigned effective date did not constitute an NOD as to the evaluation itself); see also Jarvis v. West, 12 Vet.App. 559, 562 (1999) (same); Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (reviewing an NOD to determine its scope). Given the ambiguity, the Board will find that the September 2011 communication constitutes an NOD challenging the effective date assigned in connection with the grant of service connection in addition to the initial rating assigned. Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)); Anderson v. Principi, 18 Vet.App. 371, 375 (2004) (an appellant's question as to "why [the claim] wasn't allowed back in 1985" should be liberally interpreted as an expression of disagreement with the effective date assigned, and held that either of the documents containing this question should be construed as an NOD). Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision). Thus, the RO correctly addressed the issue of entitlement to an earlier effective date for the grant of service connection for hepatitis C in the August 2014 statement of the case. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The Veteran is seeking an effective date prior to August 3, 2009 for service connection for hepatitis C. He contends that he filed an informal claim concerning this disability on May 8, 2006 from his presentation to a VA primary care clinic for treatment. See February 2013 Veteran report. Indeed, May 8, 2006 VA primary care records confirm that he sought medical attention for hepatitis C. The Board notes 38 C.F.R. § 3.157(b)(1) in effect prior to March 24, 2015 provides that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. However, 38 C.F.R. § 3.157(b)(1) "makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA). This regulation is therefore not for application in connection with the instant claim. The Board has considered the Veteran's reports that the above cited May 8, 2006 VA primary care records should be otherwise be construed as an informal service connection claim for hepatitis C. Recent amendments to VA's regulations, effective March 24, 2015, describe the specific and limited manner and methods by which a claim can be initiated and filed and do not specifically contemplate issues being raised by the record before the Board and the Board taking action to designate the issue as a claim and refer the matter to the AOJ. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160 (2015). However, those amendments do not apply retroactively. The prior version of 38 C.F.R. § 3.155 provided that an informal claim is "[a]ny communication or action, indicating an intention to apply for one or more benefits.... Such informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999) (noting that even an informal claim must be in writing); Brannon v. West, 12 Vet. App. 32, 35 (1998). Here, however, May 2006 VA primary care records do not include any statements from the Veteran that could possibly be construed as an intent to apply for VA compensation. There is no other document filed prior to August 3, 2009 indicating that the Veteran had intent to file a claim for service connection for hepatitis C for the prior version of 38 C.F.R. § 3.155 to apply. In this case, the RO assigned the date of the claim as the effective date for the service connection grant for hepatitis C in accordance with general effective date principles. 38 U.S.C. § 5110(a). There is nothing from any prior communication that indicates or implies that the Veteran intended to file a claim for compensation for hepatitis C. Consequently, this document cannot be considered an informal claim. For the foregoing reasons, the evidence preponderates against any contention that the Veteran intended to file a claim for compensation for hepatitis C prior to August 3, 2009. The May 8, 2006 VA primary care records do not reflect intent to apply for benefits or an identification of the benefits sought. There is also no other document that could be construed as an informal claim and no other exception to general earlier effective date principles applies. An effective date prior to August 3, 2009 for service connection for hepatitis C is therefore not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. IV. Higher ratings for hepatitis C and associated cirrhosis of the liver A. Applicable law and regulations Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). At the outset, the Board observes that the Veteran has a complicated medical history. He has hepatitis C with liver cirrhosis and hypothyroidism. Liver cirrhosis and hypothyroidism are assigned separate disability ratings. 38 C.F.R. §§ 4.114, 4.119, Diagnostic Codes (DCs) 7312 and 7903. The Veteran did not specifically appeal the initial ratings for cirrhosis. However, the Board finds that this disability is encompassed in the current appeal since it is a liver disease and inextricably intertwined with hepatitis C. By contrast, the Board finds that hypothyroidism is not encompassed in the higher initial rating claim for hepatitis C due to its separate anatomy. The Board also points out the representative disputed the cirrhosis rating, but not the hypothyroidism rating. See June 2015 representative letter. The Board further notes that the currently assigned DCs for hepatitis C, cirrhosis and hypothyroidism include duplicative symptoms of weight loss, fatigue, weakness and cognitive impairment. See 38 C.F.R. §§ 4.114, 4.119, DCs 7312, 7345 and 7903. In assigning ratings, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding Hepatitis C with pruritus, this disability has been rated as 20 percent disabling from August 3, 2009 and 100 percent disabling from March 11, 2015 pursuant to 38 C.F.R. § 4.114, DC 7354. Under DC 7354 for hepatitis C, a 20 percent rating applies where hepatitis C 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 hepatitis C 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 hepatitis C 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 hepatitis C 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. Regarding cirrhosis due to hepatitis C, the Veteran has a 30 percent rating prior to January 26, 2012, 50 percent rating prior to March 11, 2015 and a 70 percent rating thereafter. 38 C.F.R. § 4.114, DC 7312. Under DC 7312 for cirrhosis, a 30 percent rating applies where there is portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating applies where there is a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating applies where there is a 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. A 100 percent rating applies where there is 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). For purposes of evaluating conditions under DC 7312, "documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present." 38 C.F.R. § 4.114, DC 7312, Note. The rating schedule also provides guidance in the evaluation of weight loss in the evaluation of the impairment resulting from gastrointestinal disorders under DCs 7312 and 7354. 38 C.F.R. §§ 4.112, 4.114, DCs, 7312, 7354. For purposes of evaluating conditions in 38 C.F.R. § 4.114, 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; and 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. 38 C.F.R. § 4.112. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). B. Factual background September 2009 private medical records showed that the Veteran was assessed as having a history of abdominal pain, chronic active hepatitis, fatigue, and hepatitis C. November 2009 private medical records included fatigue complaints from the Veteran. He reported his blood sugars were under control, but he continued to feel ill. His appetite had improved and his abdominal pain was at baseline. Physical examination was notable for abdominal pain. The clinician determined that updated hepatitis C tests were needed. March 2010 private medical records showed that the Veteran reported feeling very poorly. He complained about fatigue and recent weight loss. He complained about bothersome pruritus. Clinical evaluation showed the Veteran to have a mild yellowing appearance and exhibit mild fatigue. He appeared lean. Right upper quadrant (RUQ) tenderness was noted. The clinician recommended further diagnostic testing. May 2010 VA treatment records showed that the Veteran was transferring care from a private clinician. The clinician identified diabetes and advanced hepatitis C with weight loss and decreased appetite. Clinical evaluation showed the Veteran to present as thin. He had an enlarged, tender liver. June 2010 addendum reflected that the Veteran thyroid ultrasound (US) was abnormal. The clinician noted that it may explain the weight loss and general fatigue. She also referred the issue to the hepatitis C clinic. November 2010 VA endocrinology records indicate that the Veteran was followed for a right thyroid nodule found in May 2010. As relevant, he reported significant weight loss over the past year with frequent bowel movements (BM). He complained about RUQ abdominal pain when lying down at night for the past few years. Physical examination showed right thyroid nodule with enlargement. Abdomen was notable for mild tenderness to palpation (TTP) in right upper quadrant (RUQ). The clinician indicated further thyroid treatment was needed. November 2010 VA nutrition clinic records showed that the Veteran had a nutrition consultation for weight loss associated with hepatitis C, diabetes and possibly thyroid cancer. The Veteran reported having a poor appetite. The nutritionist noted a recent six pound weight loss within a week. She assessed poor calorie intake related to poor appetite and disease process. Nutrition supplements were issued with a gradual weight gain goal. January 2011 VA treatment records showed that the Veteran's laboratory studies were reviewed. Liver imaging did not suggest cirrhosis. February 2011 VA endocrinology records reflected that the Veteran underwent a thyroidectomy. The clinical reports also noted a 30 pound weight loss over the past year and a half and RUQ abdominal pain with a hepatitis C history. March 2011 VA endocrinology records showed that the Veteran complained about severe pruritus, severe fatigue and poor blood sugar control following the thyroidectomy. The clinician assessed papillary thyroid cancer and diabetes with fatigue and weight loss. In May 2011, the Veteran had a VA liver examination. The examiner diagnosed hepatitis C. The Veteran denied being limited in any activities of daily living or having any incapacitating episodes of pain. However, he reported having near daily fatigue and occasional 5/10 RUQ abdominal pain. It lasted from a few hours to one day and occurred about three times per month. Clinical examination was notable for a 30 pound weight loss prior to thyroid surgery, but was otherwise stable. Clinical evaluation was grossly normal. Clinical liver studies were reviewed. The examiner confirmed the hepatitis C diagnosis and related it to active service. July 2011 VA treatment records noted the Veteran's reports that he had been told he had liver cirrhosis many years ago. The clinician reviewed the laboratory studies and confirmed a current cirrhosis diagnosis. September 2011 VA primary care records showed that the Veteran complained about pruritus, usually occurring the evenings and lasting one to three hours. He reported that he felt well until about 2006 or 2007. His health had deteriorated to where he could only mow half of his yard and had to rest for a day before mowing the other half. In addition to pruritus, he complained about fatigue and occasional RUQ abdominal pain. Clinical evaluation was remarkable for jaundiced skin. In February 2012, the Veteran was afforded a VA liver examination. The examiner diagnosed hepatitis C with a 1998 onset. He identified associated symptoms as fatigue on a near constant and debilitating basis, malaise on a daily basis, nausea on an intermittent basis, arthralgia on a daily basis, weight loss sustained over a three month basis, daily RUQ abdominal pain on a daily basis, and hepatomegaly. He reported that the Veteran had less than a week of incapacitating episodes due to liver disease. For cirrhosis, he identified associated symptoms as: weakness on a daily basis, intermittent abdominal pain, daily malaise, weight loss, and splenomegaly. Physical examination showed RUQ tenderness, enlarged liver and mild abdominal distension with ascites present and probable splenomegaly. February 2012 VA primary care records showed that the Veteran continued to have pruritus. As relevant, ascites was noted as a problem. March 2012 VA hepatitis clinic records showed that the Veteran had not been treated for hepatitis C at the clinic. He had a history of papillary thyroid cancer, diabetes and hepatitis induced liver cirrhosis. His main complaint was ongoing pruritus. It started several years ago and was limited to his lower extremities. After his thyroidectomy, it became more generalized. He also reported increasing fatigue and decreasing appetite over the past several months. Clinical evaluation showed tenderness only to deep palpation of the RUQ abdomen and mild hepatomegaly. The clinician reviewed tests results. She assessed hepatitis C infection and indicated he was not a good candidate for treatment right now. For cirrhosis, she noted the possibility of a transplant if hepatic function decompensated. For pruritus, she indicated it was of an uncertain etiology and possibly due to an elevation in alkaline phosphate or bile salts. May 2012 VA hepatitis clinic records confirmed that the Veteran had not been treated for hepatitis C. Currently, he reported RUQ pain and pruritus. The clinician reviewed the history and determined that interferon based therapies were not appropriate. He indicated the Veteran's low platelet level and cirrhosis would make treatment difficult. For cirrhosis, a transplant was discussed as possible future treatment. For pruritus, the clinician reported it was unusual without cholestasis. He recommended sertraline. In a June addendum, the clinician emailed the Veteran that he may be a candidate for a new hepatitis C therapy and to follow up with the hepatitis C clinic about it. June 2012 VA mental health records showed that the Veteran complained about excessive sleep. June 2012 private medical records noted chronic hepatitis C infection with liver cirrhosis and pruritus with liver cirrhosis. Clinical evaluation was notable for right upper quadrant abdomen tenderness and enlarged liver. The clinician assessed chronic active hepatitis. November 2012 VA primary care records showed that the Veteran complained about two falls. He described himself as feeling like he was walking in a fog. Review of systems and clinical evaluation were grossly normal. The clinician assessed physical disorientation and ordered laboratory studies. November 2012 VA hepatitis clinic records reflected that the Veteran had decompensated cirrhosis. The Veteran complained about confusion. Pruritus improved with medications. In addition to other diagnoses, the clinician added encephalopathy and started medication. He advised the Veteran not to drive. April 2013 VA endocrinology clinic records showed that the Veteran complained about fatigue. Clinical examination was grossly normal and laboratory studies were reviewed. The clinician assessed thyroid cancer with no evidence of residual cancer and diabetes with questionable blood sugar control. Namely, the clinician was concerned that hepatitis C may alter blood sugar readings. May 2013 VA gastroenterology records confirmed that the Veteran had decompensated cirrhosis in the form of encephalopathy from hepatitis C. The clinician reviewed the limited treatment options for hepatitis C. For encephalopathy, medication was given and the Veteran was advised not to drive. For cirrhosis, a possible future transplant was noted. Pruritus had improved, but not resolved, with medication. A September 2013 VA medical opinion reflected that hypothyroidism was related to hepatitis C. In November 2013, a treating physician from the VA Department of Gastroenterology and Hepatology issued a letter in support of the claim. He stated that the Veteran had cirrhosis due to hepatitis C and this condition was expected to deteriorate over time. The Veteran had intense difficulties with pruritus that required multiple medications. He additionally had extreme fatigue, foggy brain, and loss of balance. Recently, he had near constant difficulties requiring intermittent bed rest. January 2014 VA treatment records showed that the Veteran presented for an unscheduled visit. He complained about oral lesion, sore throat and fatigue for the past two weeks. A throat culture was taken and the Veteran was scheduled for a primary care consultation. February 2014 liver clinic records showed that the Veteran complained about mild confusion 4 to 5 times per week and lower extremity edema. He continued to have pruritus with improvement. He noted hydroxyzine made him very fatigued. He continued to struggle with chronic diarrhea. Physical examination was notable for mild bilateral edema. Laboratory studies were reviewed. The clinician offered hepatitis C treatment through a 24 week therapy. Encephalopathy was notable for insomnia due to medications. Medication adjustments were made and the clinician discussed having the Veteran's spouse accompany him to future appointments. For pruritus, the clinician indicated it was likely related to liver problems. March 2014 VA treatment records reflected that the Veteran complained about nausea and abdominal pain after restarting a medication. June 2014 VA liver clinic records showed that the Veteran reported poor sleep, edema of the legs and feet and pruritus. Clinical examination was notable for mild bilateral lower extremity edema. For hepatitis, a 24 week course of ribavirin and sofosbuvir was offered. Encephalopathy medication was continued. July 2014 VA treatment records indicated that the Veteran developed fatigue from the hepatitis C therapy. Clinical evaluation was grossly normal. The clinician assessed hepatitis C under therapy. January 2015 VA liver clinic records showed that the Veteran wanted to restart hepatitis C treatment with newer drugs. The clinician recommended a 24 week course of Harvoni. Subsequent January 2015 VA primary care records showed that the Veteran complained about fatigue and insomnia associated with Harvoni. February 2015 VA liver clinic records showed that the Veteran reported full compliance with the medication. He complained about confusion and described having a foggy memory that increased since he started treatment. Also, his insomnia increased as well. He described mild fatigue. The clinician assessed the Veteran as tolerating the treatment well. In March 2015, the Veteran had another VA examination. The examiner diagnosed Hepatitis C and liver cirrhosis. He reported being diagnosed with hepatitis C in 1998 and cirrhosis in 2001. He had tried various medications. He was currently taking Harvoni and it appeared to be working. Currently, he had extreme fatigue. He stayed at home and only left for medical appointments. For symptoms, the examiner noted near-constant and debilitating fatigue, malaise and arthralgia. Anorexia and RUQ abdominal pain occurred on a daily basis. Nausea occurred on an intermittent basis. The Veteran had significant weight loss over a period of three months or more. Hepatomegaly was present and required restricted sugars and carbohydrates. However, the examiner indicated incapacitating episodes were not present. For cirrhosis, the examiner endorsed symptoms of: weakness, anorexia, abdominal pain, malaise, significant weight loss sustained over three months, ascites with last episode in March 2012, portal hypertension and splenomegaly. Clinical test results were reviewed. For functional impact, the examiner described extreme fatigue preventing the Veteran from leaving his residence with the exception for medical appointments. He was unable to walk a block or perform sedentary work due to fatigue. In May 2015, the Veteran had a nutrition consultation. He complained about poor appetite and difficulty chewing and swallowing. Advice was given about daily calorie intake. The stated goal was to maintain the current weight. In June 2015, the representative requested separate total ratings for hepatitis C and cirrhosis. He cited the clinical findings from the March 2015 VA examination. In July 2015, VA treatment records showed that the Veteran was about to finish hepatitis C treatment. He continued to have extreme fatigue. August 2015 VA endocrinology records showed that the Veteran was assessed as having fatigue that worsened after he completed his hepatitis C therapy. The clinician assessed that there was no evidence for recurrence of thyroid cancer and provided a different medication for worsening neuropathy symptoms. September 2015 VA gastroenterology clinic records reported that clinical testing found no detection for the hepatitis C virus. However, he would still need monitoring for liver cirrhosis. January 2016 VA primary care records showed that the Veteran had a history of hepatitis C. He complained about insomnia and described a sensation where he felt like he was suffocating while asleep. Physical examination was grossly normal. The clinician increased the hypothyroidism medication, placed a pulmonary referral for dyspnea and noted his request for a walk in bathtub due to chronic low back pain. February 2017 VA primary care records showed that the Veteran was in the process of having a walk in tub installed at his residence. He was being treated for sleep apnea. Physical examination showed the Veteran to have mild tenderness over the RUQ and an enlarged liver. Otherwise, normal findings were reported. For the assessment, the clinician listed diabetes with peripheral neuropathy, hypothyroidism and chronic low back pain. C. Analysis Upon review, the Board resolves any reasonable to doubt in the Veteran's favor to find that the evidence shows service-connected symptoms that more nearly approximating the criteria for the following increases. 38 C.F.R. §§ 4.3, 4.7. For hepatitis C pursuant to DC 7354, a uniform 100 percent rating is warranted prior to March 11, 2015. 38 C.F.R. § 4.114, DC 7354. For cirrhosis, a uniform 70 percent rating is assigned from July 6, 2011. The analysis for each rating is explained below. (i) Hepatitis C As noted, the Board resolves all reasonable doubt to find the Veteran's hepatitis C symptoms more nearly approximate a 100 percent rating under DC 7354 from August 3, 2009. 38 C.F.R. §§ 4.3, 4.7, 4.114, DC 7354. The total rating criteria under DC 7354 contemplates near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). The February 2012 and March 2015 VA examiners endorsed debilitating fatigue. The medical records are replete with reports of RUQ pain or tenderness and also refer to arthralgia. The November 2013 letter from the Veteran's treating physician suggests debilitating fatigue due to hepatitis C as well. Although it appears the severity of hepatitis C symptoms has some variation, the evidence is clear that the Veteran has experienced a marked deterioration in health due to malaise and fatigue type symptoms associated with hepatitis C from August 3, 2009. See November 2009, March 2010 and May 2010 private medical records; September 2011 VA primary care records. In assigning the total rating for hepatitis C, the Board has considered the 30 percent rating for hypothyroidism and reports that debilitating fatigue and weight loss were associated with the February 2011 thyroidectomy. In this case, hypothyroidism is shown to be a hepatitis C complication. See September 2013 VA medical opinion. The currently assigned rating for hypothyroidism was not in effect until September 8, 2011. Although it contemplates fatigue, it also contemplates other symptoms (i.e., constipation and mental sluggishness) and does not encompass the debilitating fatigue suggested by the medical records. In this particular case, the Board does not find the total rating under DC 7954 for hepatitis C to duplicate fatigue symptoms associated with the current 30 percent rating under DC 7903 for hypothyroidism. 38 C.F.R. § 4.14. The Board has also considered pruritus symptoms. See February 2014 VA treatment records (reported pruritus likely caused by liver disorder). In this case, the total rating for hepatitis C lists several symptoms that do not include pruritus. However, the term "such as" indicates that these symptoms are not necessarily exhaustive. Given that DC 7354 does not limit the type of debilitating symptoms due to hepatitis C, the Board finds that pruritus is most appropriately characterized as a debilitating symptom under DC 7354 and not a separately ratable manifestation of hepatitis C. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) (noting the term "such as" in the General Rating Formula for Mental Disorders allows adjudicators to consider additional symptoms not specifically listed in the rating criteria). Accordingly, a 100 percent initial rating for hepatitis C is granted effective from the August 3, 2009 date of service connection. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (ii) Cirrhosis For cirrhosis, a uniform 70 percent rating is assigned from July 6, 2011. 38 C.F.R. §§ 4.3, 4.7, 4.114, DC 7312. Although the Veteran reported a cirrhosis history as early as 2001, the diagnosis was not unequivocally confirmed until July 6, 2011. Compare January 2011 and July 2011 VA treatment records. February 2012 VA treatment records confirm an ascites episode. Then, significant cognitive symptoms or encephalopathy as associated with cirrhosis was reported beginning November 2012. The symptoms were of a severity that the Veteran was advised not to drive on two occasions. (See November 2012 and May 2013 VA treatment records; see also February 2014 VA treatment records suggesting the Veteran's spouse accompany him to future medical appointments). Although the Veteran developed ascites and encephalopathy after cirrhosis was found in July 2011, the Board cannot identify the precise date of deterioration in liver function. Since these symptoms, particularly the ascites episode, occurred fairly soon after the July 2011 cirrhosis assessment, the Board resolves reasonable doubt to find the criteria for a 70 percent rating under DC 7312 for cirrhosis of the liver are more nearly approximated from July 6, 2011. Id. The Board declines to find that cirrhosis more nearly approximates a total rating. For encephalopathy as specifically contemplated by DC 7312, the evidence indicates that there is variation in the severity of symptoms and that medication is partially effective. Specifically, May 2013 VA treatment records showed the Veteran reporting medicine was somewhat helpful and January 2015 VA treatment records prior to Hepatitis C therapy showed the Veteran denying confusion symptoms. Following July 2015 hepatitis C treatment, the medical records are silent regarding it. The Board finds that encephalopathy is not refractory to treatment as contemplated in the total rating criteria. 38 C.F.R. § 4.114, DC 7312. For these reasons, the encephalopathy symptoms reasonably due to cirrhosis of liver are not found to more nearly approximate a total rating under DC 7312. Id. Also, the Veteran is now in receipt of a total rating for hepatitis C. The symptoms of debilitating fatigue and weight loss in the total rating criteria for hepatitis C overlap with the total rating criteria for cirrhosis, specifically weakness and weight loss since both cause general restrictions in physical activity. Compare 38 C.F.R. § 4.114, DCs 7312 and 7354. Thus, a total rating under DC 7312 on the basis of weakness and weight loss would result in a pyramiding of symptoms with these symptoms already being contemplated in the total rating for hepatitis C under DC 7354. 38 C.F.R. § 4.14. The Board notes that the currently assigned rating for hypothyroidism contemplates mental sluggishness. However, in this particular case, the overall medical records indicate the severity and type of hepatic encephalopathy contemplated in DC 7312 is substantially different than the general mental sluggishness that is one of three symptoms for the 30 percent hypothyroidism rating under DC 7903. Accordingly, the Board does not find the 70 percent rating under DC 7312 for cirrhosis to result in pyramiding in this particular case. 38 C.F.R. § 4.14. Accordingly, an initial rating of 70 percent, but no higher, for cirrhosis of the liver due to hepatitis C is granted effective from July 6, 2011. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. Additional rating considerations, to specifically include Special Monthly Compensation (SMC) 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, 369-70 (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 has considered entitlement to a total disability rating based upon individual unemployability (TDIU) as part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran is now in receipt of a 100 percent rating for hepatitis C from August 3, 2009. The Court has held that a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for SMC benefits pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Board is granting additional SMC benefits due to the total rating award in the instant decision. There is no evidence that further consideration of TDIU would benefit the Veteran. The issue of TDIU is effectively rendered moot by the Board's rating actions. Currently, the Veteran has a special monthly compensation (SMC) rating under 38 U.S.C. § 1114(s) from March 11, 2015. The Board finds that earlier effective date of August 3, 2009 for SMC is warranted due to the favorable rating action in the instant decision. From August 3, 2009, the Veteran is service-connected for the following disabilities: hepatitis C, now at 100 percent; DDD and stenosis, lumbar spine, 40 percent, left sciatic radiculopathy, 20 percent, right tarsal tunnel syndrome, 10 percent and bilateral orchidoplexy, noncompensable. The orthopedic disabilities are separate and distinct from hepatitis C within the meaning of 38 C.F.R. § 3.350(i)(1). Thus, the Veteran is now in receipt of a total rating plus additional disabilities independently ratable at 60 percent that are separate and distinct from the total hepatitis C rating. He now meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114(s) from August 3, 2009 as well. For the above stated reasons, entitlement to SMC pursuant to 38 U.S.C. § 1114(s) is now warranted from August 3, 2009, in addition to the time periods for which this benefit has already been granted. ORDER Restoration of a 40 percent rating for DDD and stenosis of the lumbar spine from February 8, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. Restoration of a 20 percent rating for left sciatic radiculopathy from February 8, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. An effective date prior to August 3, 2009 for hepatitis C service connection is denied. From August 3, 2009 until March 11, 2015, a rating of 100 percent for service-connected hepatitis C is granted, subject to controlling regulations governing the payment of monetary awards. From July 6, 2011, a rating of 70 percent, but no higher, for cirrhosis of the liver due to hepatitis C is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s) from August 3, 2009 is granted, subject to controlling regulations governing the payment of monetary awards. ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs