Citation Nr: 18121747 Decision Date: 07/26/18 Archive Date: 07/26/18 DOCKET NO. 11-07 177 DATE: July 26, 2018 ORDER Entitlement to a disability rating of 40 percent for Hepatitis C with cirrhosis of the liver is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT 1. The Veteran’s hepatitis C with cirrhosis of the liver is manifested by fatigue, malaise, minor weight loss, and incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12-month period. 2. The Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW 1. The criteria for a rating of 40 percent for service connected hepatitis C with cirrhosis of the liver have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.114, Diagnostic Code 7354 (2017). 2. . The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1975 to February 1978. In May 2013, the Veteran and his spouse presented sworn testimony at a hearing held by a Veterans Law Judge (VLJ) who is no longer with the Board. He was offered an additional hearing with a current VLJ, and in June 2018, the Veteran presented sworn testimony during a videoconference hearing chaired by the undersigned VLJ. Transcripts of both proceedings are of record. 1. Entitlement to a disability rating in excess of 20 percent for Hepatitis C with cirrhosis of the liver Disability evaluations are determined by the application of a schedule of ratings, which 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. Although a disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes (DC) is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one DC requires the use of an additional DC to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran is assigned hyphenated DC 7312-7354 for hepatitis C with cirrhosis of the liver, and is currently assigned a 20 percent rating under DC 7354. Under DC 7354, a 40 percent rating is assigned for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. 38 U.S.C. § 4.114, DC 7354. VA treatment notes from February 2011 indicate the Veteran had moderate to severe fatigue and malaise at that time. April 2011 and June 2011 statements from the Veteran’s VA treatment provider explained the chronic fatigue, weight loss, and other symptoms caused by hepatitis C and treatment thereof, including the Veteran’s loss of ability to maintain his full time employment. On VA examination in June 2013, the examiner states that the Veteran is asymptomatic, however, the report indicates the Veteran experienced fatigue and right upper quadrant pain. On VA examination in September 2014, the Veteran described incapacitating fatigue lasting 7 to 10 days per month. On VA examination in August 2016 consistently show the Veteran suffers from chronic fatigue, in addition to malaise, nausea, arthralgia, and right upper quadrant pain, resulting in incapacitating episodes. Testimony provided by both the Veteran and his spouse is consistent with incapacitating episodes, fatigue, and some mild weight loss. The Veteran’s spouse testified in May 2013 that he had significant side effects following treatment in 2011, resulting in fatigue and weight loss. At both hearings, the Veteran provided testimony of his fatigue and incapacitation. Based on the evidence above, the Board finds the Veteran’s fatigue, mild weight loss, and incapacitating episodes of several days per month are consistent with a disability rating of 40 percent under DC 7354. Therefore, the Veteran’s hepatitis C with cirrhosis of the liver warrants a rating of 40 percent. Consideration has been to the fact that DC 7354 provides for higher (60 and 100 percent) ratings. While a claimant is generally presumed to be seeking the maximum benefit available by law, he can choose to limit his claim to a lesser benefit. AB v. Brown, 6 Vet. App. 35 (1993). Here, at the June 2018 hearing, the Veteran stated that he is seeking and would be satisfied with a 40 percent rating. Such was confirmed by both the Veteran and his representative. Accordingly, the assignment of a 40 percent rating for the symptoms of the Veteran’s hepatitis C constitutes a full grant of the issue on appeal. 2. Entitlement to a TDIU In adjudicating the above claim for increased rating, the Board finds that the issue of TDIU inextricably intertwined due to the Veteran’s incapacitation from fatigue. The Board finds that the Veteran’s service-connected conditions, specifically his hepatitis C with cirrhosis of the liver, and the associated symptoms, preclude his gainful employment. A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating alone is recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Prior to this decision, the Veteran had a combined disability rating of 80 percent, meeting the schedular threshold for TDIU. Specifically, the Veteran had a 50 percent rating for an acquired psychiatric condition, 30 percent for protal hypertensive gastropathy, 10 percent for tinnitus, a non-compensable rating for thrombocytopenia, and a 20 percent for hepatitis C with cirrhosis of the liver. The Board awarded a 40 percent rating, above, for hepatitis C with cirrhosis of the liver. The record shows that prior to the Veteran’s diagnosis of hepatitis C, the Veteran worked as a full-time bricklayer. Upon his diagnosis and subsequent treatment for hepatitis C, the Veteran experienced fatigue and periods of incapacitation resulting in loss of his employment. Of record is a January 2013 letter from the Veteran’s former employer explaining that he could not be granted light-duty due to the nature of brick laying, and that his employment was terminated based on his physical inability to complete his job. The letter acknowledged the Veteran’s limitations were due to his medical treatment. The record also contains documents provided from the Social Security Administration (SSA) showing the Veteran has been disabled due to hepatitis C since August of 2008. Though not dispositive, the Board considers this evidence to be credible and persuasive. The Veteran meets the schedular criteria for a TDIU rating. See 38 C.F.R. § 4.16(a). Further, based on the evidence of record, the Board finds that the overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (the question of whether a Veteran’s service-connected disabilities rendered her/him unemployable is a legal determination to be made by the Board). Entitlement to a TDIU is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel