Citation Nr: 18153712 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-03 349 DATE: November 28, 2018 ORDER For the rating period on appeal prior to April 5, 2013, a rating of 40 percent, but no higher, for the service-connected hepatitis C with cirrhosis is granted. Beginning April 5, 2013, a rating higher than 20 percent for the service-connected hepatitis C with cirrhosis is denied. FINDINGS OF FACT 1. For the rating period on appeal prior to April 5, 2013, the Veteran’s hepatitis C with cirrhosis more nearly approximated daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly. 2. Beginning April 5, 2013, the Veteran’s hepatitis C with cirrhosis was not productive of hepatomegaly, at least minor weight loss, or incapacitating episodes equal to at least 4 weeks during the past 12-month period. CONCLUSIONS OF LAW 1. For the rating period on appeal prior to April 5, 2013, the criteria for a rating of 40 percent, but no higher, for hepatitis C have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354 (2017). 2. Beginning April 5, 2013, the criteria for a rating higher than 20 percent for hepatitis C with cirrhosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to December 1969. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision, of which notice was sent to the Veteran in November 2012, of a Department of Veterans Affairs (VA) Regional Office (RO). As a procedural history, the Veteran was granted service connection for hepatitis C in January 2012. A 60 percent rating was assigned, effective June 28, 2007, and a noncompensable rating was assigned, effective November 29, 2011. The Veteran did not submit a timely notice of disagreement to the January 2012 rating decision, but instead, filed a June 2012 supplemental claim requesting an increased rating for the service-connected Hepatitis C. Subsequently, the RO issued an October 2012 rating decision, of which the Veteran was notified in November 2012, that increased the rating from noncompensable to 20 percent, effective July 1, 2012. Also, during the pendency of the appeal, the Veteran submitted a November 2012 claim for a total disability rating due to individual unemployability (TDIU). Although the Veteran has maintained full-time employment at his primary employer, he contends that he should be rated as unemployable because he was forced to quit his secondary part-time employment due to the hepatitis C and cirrhosis. The RO denied a TDIU in an October 2013 rating decision. The Veteran did not file a timely notice of disagreement, and the evidence of record does not raise the issue of a TDIU. Thus, the issue of entitlement to a TDIU will not be addressed in this decision. In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). This decision is being made under the “one-touch” program. The VLJ, during the November 2018 Board hearing, complied with her duties as outlined in Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. & 2. Prior to April 5, 2013, a rating of 40 percent for the service-connected hepatitis C with cirrhosis is granted; beginning April 5, 2013, a rating higher than 20 percent for the service-connected hepatitis C with cirrhosis is denied. The Veteran contends that his service-connected hepatitis C with cirrhosis of the liver is worse than is contemplated by a 20 percent disability rating. See December 2012 notice of disagreement. Hepatitis C with 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, is rated 20 percent disabling. 38 C.F.R. § 4.114, Diagnostic Code 7354. Hepatitis C with 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, is rated 40 percent disabling. Id. Hepatitis C with 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, is rated 60 percent disabling. Id. Hepatitis C with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), is rated 100 percent. Id. Note (2) provides that, for purposes of rating conditions under Diagnostic Code 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. Diagnostic Code 7312 provides rating criteria for cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. Cirrhosis with portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss, is rated as 30 percent disabling. Cirrhosis with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), is rated as 50 percent disabling. A Note to Diagnostic Code 7312 states that documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114, Diagnostic Code 7312. Turning to the evidence of record, the Veteran was afforded a VA examination in November 2011. The examiner, a nurse practitioner, reported the Veteran had a current diagnosis of hepatitis C. The examiner indicated the Veteran was not on continuous medication for treatment of the hepatitis C. Further, the examiner reported that the Veteran confirmed that his condition had not changed since his VA examination in December 2009. He reported that the status of his hepatitis C was being monitored by a private hepatologist. The examiner found that the Veteran did not have signs or symptoms attributable to chronic or infectious liver disease or signs or symptoms of cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. The Veteran did not have any pertinent physical findings, complications, conditions, signs, or symptoms related to the hepatitis C. Essentially, the examiner found the Veteran asymptomatic. The Veteran’s April 2012 private treatment records from his gastroenterologist, Dr. W.B.S., report the Veteran had chronic hepatitis C genotype 1A. He had been previously treated in the late-1990s, but had not improved. He had not sought treatment since that time. The Veteran was experiencing extreme fatigue. The Veteran denied jaundice, darkening of urine, acholic appearing stools, increasing abdominal girth, leg edema, bleeding, bruising, or signs of coagulopathy. He denied vomiting, hematemesis melena, and change in bowel habits. On physical examination, the Veteran’s abdomen was clear, soft, nontender, without hepatosplenomegaly or palpable masses, and was positive for bowel sounds. No edema was found in his extremities. His respiratory system was clear. No rashes, ecchymosis, or bruises were found. His weight was noted at 262 pounds. Dr. W.B.S. noted the Veteran was markedly fatigued. The Veteran was afforded an abdominal sonogram in April 2012. The Veteran’s liver measured 16.1 centimeters. Echo patterns within the liver were homogeneous and no focal liver lesions were seen. The common duct measured 2 millimeters in diameter. The impression was no detectable abnormality of the liver on examination. In July 2012, the Veteran underwent a liver biopsy, which showed a grade 2, stage 1-2 chronic active hepatitis C. The Veteran was extremely fatigued. Private treatment records dated August 2012 show the Veteran began a 48-week Interferon treatment for the hepatitis C in July 2012. He had fatigue, insomnia, dry cough, intermittent gastrointestinal upset, rashes, pruritus, and irritability. The Veteran’s weight was 264.5 pounds. The Veteran’s abdomen was soft with active bowel sounds. No hepatomegaly was found on physical examination. The Veteran was afforded another VA examination in August 2012. The examiner, a nurse practitioner, reported a current diagnosis of hepatitis C and cirrhosis of the liver. The Veteran reported that he experienced an increase in fatigue over the previous year. The Veteran was being followed by a gastroenterologist, who performed a liver biopsy in July 2012 and found the Veteran had a cirrhotic liver with level 2 inflammation. The Veteran recently had started continuous treatment with antiviral hepatitis C medications. The Veteran reported fatigue, nausea, vomiting, hepatomegaly, rashes, shortness of breath, diarrhea, and loss of energy. The examiner found that the Veteran had incapacitating episodes of at least 2 weeks but less than 4 weeks over the past 12 months. The Veteran had weakness due to the cirrhosis of the liver. The Veteran submitted a statement in August 2012. He reported he had been experiencing extreme exhaustion since the beginning of 2011. The Veteran reported that in March of 2012, he was examined by his gastroenterologist, who conducted a liver biopsy and determined the Veteran’s exhaustion was related to the cirrhosis. The Veteran was treated aggressively with Interferon injections and oral medications. He also had extreme reactions to the treatment, which forced him to quit his part-time job and caused difficulty keeping up at his full-time job. The Veteran’s spouse cared for him when he had high fevers, chills, nausea, and diarrhea. The Veteran’s spouse, K.J., also submitted a statement in August 2012. K.J. reported that the Veteran’s energy level and general health had steadily declined over the previous two years. The Veteran experienced extreme exhaustion which was increasing in severity. K.J. reported the Veteran was forced to quit his part-time job which resulted in a loss of income of $10,000 to $15,000 per year. K.J. also reported that due to the Veteran’s loss of energy, they incurred additional expenses because they had to hire other people to do things the Veteran usually did, such as hiring someone to mow the lawn. K.J. also reported that they no longer were able to eat out at restaurants or visit with friends because of the Veteran’s hepatitis C symptoms. K.J. also reported that the medications given to treat the hepatitis C caused the Veteran to feel sick in addition to the exhaustion. K.J. reported these symptoms cause the Veteran to be depressed. Private treatment records dated September 2012 show the Veteran had fatigue, insomnia, myalgia/arthralgia, intermittent morning nausea, pruritus, depression, and improved cough. His weight was down to 262 pounds from 264.5 pounds. No hepatomegaly was found on physical examination, and the Veteran’s abdomen was soft, nontender with active bowel sounds. The Veteran was examined in October 2012 by his private gastroenterologist. The Veteran had fatigue, insomnia, weight loss, myalgia/arthralgia, gastrointestinal upset, specifically nausea, and depression. The Veteran’s weight was 258.5 pounds from 262 pounds. No hepatomegaly was found on physical examination. The Veteran’s abdomen was soft, and nontender with active bowel sounds. The Veteran submitted a copy of an application for leave under the Family Medical Leave Act (FMLA) for his employer to VA in November 2012. The Veteran’s private gastroenterologist completed the Certificate of Health Care Provider in November 2012. The physician noted the Veteran was being treated for a chronic condition and that treatment duration was expected to last 48 weeks. Possible side effects of the treatment included fatigue, headaches, myalgias, insomnia, depression, irritability, nausea, vomiting, diarrhea, pruritus, rashes, and loss of appetite. The physician noted that throughout the course of treatment, the Veteran may need time off work due to side effects. The physician noted the Veteran could be incapacitated for a single continuous period of time due to the treatment side effects, but that it would depend on the severity of the side effects from the treatment. The physician noted the Veteran would need to attend monthly follow up appointments and submit to monthly bloodwork. The physician reported the Veteran may have flares, and based on the Veteran’s medical history, the estimated flare ups were likely to be one flare up every week lasting two to three days per episode. November 2012 private treatment records reported the Veteran had fatigue, weight loss, myalgia/arthralgia, rashes, pruritus, irritability, and mood swings. His weight was down to 244.5 pounds from 258.5 pounds. The Veteran exhibited excoriation and had scaling of his skin on all extremities. No hepatomegaly was found, and the Veteran’s abdomen was soft and nontender with active bowel sounds. He also was anemic. Private treatment records dated January 2013 show that the Veteran had fatigue, myalgia/arthralgia, gastrointestinal upset, rashes, and pruritus. The Veteran’s weight was measured at 244 pounds. No hepatomegaly was found. The Veteran reported that he was feeling better. February 2013 and March 2013 private treatment records that report the Veteran had fatigue, insomnia, weight loss, and pruritus. He did not exhibit hepatomegaly. His weight was down to 239 pounds in February 2013 and 235 pounds in March 2013. The Veteran submitted an April 2013 abdominal sonogram report. The Veteran’s liver measured 14.6 centimeters in maximum dimension, which was within normal limits. There was evidence of increased echogenicity in the liver with attenuation of sound. No focal liver lesions were identified. The common duct measured 3.5 millimeters in diameter. The impression was there was evidence of fatty liver infiltration. The Veteran’s employer submitted a VA Form 21-4192 in April 2013. The employer reported that the Veteran had been employed since September 1982 and he was currently employed full time. The employer reported the Veteran was given FMLA leave of absence for approximately three weeks from November 28, 2012 to December 18, 2012. The Veteran submitted a statement in May 2013. He reported that he was barely able to perform adequately at his full-time employment, and his part time career as a musician had ended because of his hepatitis C, cirrhosis, and depression. The Veteran reported experiencing daily fatigue, malaise, hepatomegaly, and incapacitating episodes with fatigue, vomiting, anorexia, and right upper quadrant pain. He has lost 30 pounds since August 2012. The Veteran submitted a second statement in May 2013. The Veteran reported he had been unable to work at his part time employment due to the reoccurrence of his hepatitis C, cirrhosis of the liver, and depression. He submitted copies of his tax returns to show that he had income loss from the loss of his part-time self-employment. See also November 2013 statement. Treatment records from the Veteran’s private gastroenterologist from May 2013 reported the Veteran had fatigue, insomnia, myalgia, arthralgias, gastrointestinal upset, irritability, and mood swings, which were side effects of the hepatitis C treatment. His weight was reported down to 237 pounds. His abdomen was soft, non-tender with active bowel sounds, and no hepatomegaly was found. His general appearance was well developed and well-nourished. Private treatment records dated June 2013 reported that the Veteran completed week 45 of 48 weeks of the Interferon and Ribavirin treatment. The Veteran experienced fatigue, insomnia, myalgias, arthralgias, upset stomach, irritability, mood swings, and intermittent rashes. The Veteran’s weight was reported as 237 pounds. On physical examination, the Veteran was well developed, well nourished, and in no apparent distress. The Veteran’s abdomen was soft with mild tenderness in the left lower quadrant. Bowel sounds were present. No masses, rebounding, or guarding was found. The Veteran did not have hepatosplenomegaly. No spider angiomata, palmar erythema, rashes, ecchymosis, or bruises are found. The overall impression was that the Veteran was virus negative since week four of treatment. Private treatment records dated August 2014 reported that the Veteran’s abdomen was soft, non-tender, with normal bowel sounds. No hepatosplenomegaly was found on physical examination. The Veteran asserted, in his December 2014 VA Form 9, that he experienced daily fatigue, malaise, hepatomegaly, incapacitating episodes due to fatigue, malaise, nausea, vomiting, arthralgia, and upper right quadrant pain for a total of at least 4 weeks during the previous 12 months. Based on this evidence, he believed a 40 percent rating was warranted. Additionally, the Veteran again asserted that the hepatitis C had prevented him from continuing his part-time employment as an entertainer and musician, which reduced his future income. Due to this loss of income, he believed a 60 percent disability rating should be assigned. The Veteran also stated he was seeking a 100 percent rating based on his symptoms and the effect his symptoms had on his past, present, and future earnings. The Veteran was afforded an additional VA-contracted examination in February 2015. The examiner, a physician’s assistant, reported the Veteran had a current diagnosis of hepatitis C and cirrhosis of the liver. The examiner noted the Veteran completed the hepatitis C treatment in 2013 and was followed by his private gastroenterologist. He reported his fatigue limited his ability to perform daily activities intermittently. The Veteran reported that he continued to work full time. At the time of examination, the Veteran was not taking continuous medication for the hepatitis C. He continued to have fatigue and nausea. The examiner indicated that the Veteran had not had any incapacitating episodes due to the liver conditions in the past 12 months. The Veteran had intermittent weakness due to the cirrhosis of the liver. The examiner indicated the Veteran’s liver condition did not impact his ability to work. The Veteran testified at a November 2018 hearing. The Veteran reported he had 48 weeks of treatment for the hepatitis C and cirrhosis of the liver. He also reported that the hepatitis C was in remission, and that he felt well. However, the Veteran reported that when he had hepatitis C, he would have incapacitating episodes lasting four or five days at a time. After a review of the evidence, both lay and medical, the Board finds that for the rating period on appeal prior to April 5, 2013, a 40 percent rating is warranted because the preponderance of the relevant evidence demonstrates a disability picture that more nearly approximates hepatitis C with daily fatigue, malaise, anorexia, with minor weight loss and hepatomegaly. First, the Board considered the November 2011 VA examination but found it to be less probative than the other evidence of record. The November 2011 examiner essentially found that the Veteran was asymptomatic despite the Veteran’s credible reports in the August 2012 VA examination that he had experienced extreme and increasing fatigue for at least a year. Further, although outside the appellate period, the Board notes a December 2009 sonogram reported liver enlargement with possible fatty changes, which suggests that the Veteran’s enlarged liver may have been present during the November 2011 VA examination. This tends to show that the November 2011 VA examination did not consider the Veteran’s contentions, thoroughly examine the Veteran, provide all necessary testing to determine the residuals of the hepatitis C, and/or closely review the medical evidence of record. Thus, the Board assigns the November 2011 VA examination low probative weight. The Board notes that prior to April 5, 2013, the competent and credible medical and lay evidence consistently demonstrates complaints of daily fatigue, malaise, anorexia, and minor weight loss. There was also evidence of liver enlargement documented in an April 2012 sonogram. The August 2012 VA examination report indicates fatigue, nausea, vomiting, hepatomegaly, rash, shortness of breath, diarrhea, and loss of energy. Nothing was noted under the category for weight loss. However, the Board notes that the Veteran’s weight before April 5, 2013 fluctuated, at most, from 262 pounds to 235 pounds, a difference of 27 pounds. The Veteran’s statements regarding his weight loss and other symptoms are consistent with these fluctuations, which is sufficient to show, at the very least, minor fluctuation required for a 40 percent rating. For the rating period on appeal prior to April 5, 2013, the evidence shows the Veteran experienced minor weight loss and evidence of hepatomegaly. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds that, before April 5, 2013, the evidence more nearly approximates the 40 percent rating criteria under DC 7354 for the hepatitis C with cirrhosis. However, beginning April 5, 2013, a rating higher than 20 percent is not warranted. The competent and credible medical and lay evidence beginning April 5, 2013 demonstrates complaints of daily fatigue and malaise. However, there was no longer any evidence of liver enlargement as documented according to an April 5, 2013 private sonogram. Additionally, the private treatment records show the Veteran’s weight was stable after April 5, 2013, fluctuating only a couple of pounds during this period on appeal. In addition, the Veteran did not report, and the evidence of record does not indicate, that he had any further incapacitating episodes equal to a minimum of 4 weeks of the past 12 months due to the hepatitis C or cirrhosis. He reiterated, during his November 2018 Board hearing, that his disability has not experienced any incapacitating episodes. Accordingly beginning April 5, 2013, the evidence does not show that the Veteran had incapacitating episodes of liver disease of at least 4 weeks or that he continued having minor weight loss. Further, the Veteran’s April 5, 2013 abdominal sonogram measured the Veteran’s liver to be 14.6 centimeters, which was noted to be within normal limits. Therefore, beginning April 5, 2013, a preponderance of the evidence is against the claim for a rating higher than 20 percent, and the claim must be denied. It is noted that the 20 percent rating assigned from April 5, 2013, is not considered a reduction per se; rather, it is a staged rating based on the evidence of record. The Board considered whether a higher rating could be assigned under Diagnostic Code 7312 for cirrhosis of the liver for any period on appeal. Although there is evidence of splenomegaly with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss during at least part of the period on appeal, all of those symptoms except for the splenomegaly have already been contemplated in the rating assigned under DC 7354. 38 C.F.R. § 4.14 (2017). Moreover, there is no evidence of portal hypertension at any time during the entire period on appeal. There is also no evidence of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). Thus, a separate or higher rating under Diagnostic Code 7312 is not for application. (Continued on the next page)   Finally, the Board notes that neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel