Citation Nr: 19190485 Decision Date: 12/02/19 Archive Date: 12/02/19 DOCKET NO. 12-05 890 DATE: December 2, 2019 ORDER Entitlement to a compensable rating for hepatitis C is denied. FINDING OF FACT During the appeal period, the Veteran’s hepatitis C was not productive of intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1972 to September 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in January 2018 instructing the RO to obtain outstanding medical records, obtain a VA examination to assess the severity of the Veteran’s hepatitis C and to readjudicate the appeal. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained medical records, obtained a July 2018 VA examination, and issued a supplement statement of the case. The Board finds the RO substantially complied with the January 2018 remand directives. Entitlement to a compensable rating for hepatitis C. The Veteran is currently service connected for hepatitis C under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354 with a noncompensable rating effective March 12, 2010. The Veteran seeks a compensable rating because he contends his disability has increased in severity. During the October 2017 Board hearing, the Veteran testified that he lost considerably more weight-loss, but his symptoms were the same except for no nausea. The Veteran stated that fatigue kept him from traveling far from his house and he could not eat due to anorexia. The Veteran also stated that he received treatment for 18 months which involved injections three times a week which has put his hepatitis C in remission. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate DC. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased 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)). Under DC 7354, a 10 percent rating is warranted when there is 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 is warranted when there is 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 is warranted when there is 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 is warranted 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. Id. The Board notes that because of the conjunctive “and” in this set of criteria, all the criteria must be met to establish entitlement to a 60 percent rating on this basis. A 100 percent is warranted with near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Note 1 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. Id. Note 2 provides that, for purposes of rating 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. Id. The Veteran was afforded a VA examination in July 2010. The examiner noted the Veteran had undergone interferon treatment in 1998 and that his hepatitis C was in remission. It was noted that the Veteran had no history of liver disease and no extra-hepatic manifestations of liver disease. The examiner diagnosed the Veteran with hepatitis C with no effects on daily activities. In March 2012, the Veteran attended a follow up appointment at a VAMC. The chief complaint was new nail growth. The Veteran stated that he experienced fatigue, but denied unintentional weight loss or weight gain, night sweats, fevers, and illnesses. The Veteran also stated that he did not experience nausea, vomiting, diarrhea, constipating, jaundice, and melena. Physical examination revealed hepatitis C was undetectable. The Veteran’s hepatitis C was re-evaluated in March 2014. The examiner noted that continuous medication was not required, and the Veteran did not have signs or symptoms of liver disease. The examiner also noted that the Veteran did not experience incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. The hepatitis C viral titers were undetectable during diagnostic testing. The examiner stated that the Veteran appeared to be cured of his hepatitis C; therefore, any current symptoms the Veteran experienced were not due to hepatitis C. Based on the findings of the evidence, the Veteran was denied an increased rating for his service-connected hepatitis C. VA treatment records show the Veteran declined HCV testing in November 2016 and October 2017. The Board remanded the claim for an updated VA examination to determine the severity of the Veteran’s hepatitis C. In the June 2018 VA examination, the examiner noted that the Veteran’s condition had cleared since treatment, condition resolved, and there were no symptoms from liver disease. The examiner also noted that continuous medication was not required, and the Veteran did not have any incapacitating episodes with symptoms as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and upper right quadrant pain. The examiner concluded the examination by stating that the Veteran’s hepatitis C had resolved, there was no liver damage, no residual disability, and the Veteran had normal lab work multiple times. Based on the evidence presented above, the Board finds that the overall disability picture for the Veteran’s hepatitis C does not more closely approximate the 10 percent rating under DC 7354. The Board is cognizant of the Veteran’s lay contentions that his disability has induced fatigue to the point of him not being able to travel far from his home. Although the Veteran contends that his still experiences fatigue, loss of appetite, and weight-loss, the medical evidence of record does not support the contention that these symptoms are residuals of hepatitis C. Nonetheless, he is not competent to determine that his symptoms fit the 10 percent rating criteria under DC 7354. The Veteran, in this case, has not been shown to have the expertise, skills, or training needed to make such a determination. Further, his symptoms were addressed by competent medical professions, who did not find that his symptoms caused incapacitating episodes. In addition, the medical evidence has continuously shown the Veteran’s hepatitis C has resolved. The Board has considered other applicable DCs; however, as there is no objective evidence of sequelae, such as cirrhosis or malignancy of the liver, there is no basis for separate evaluations. 38 C.F.R. § 4.114, DC 7354, Note 1. (Continued on the next page)   As the preponderance of the evidence is against a finding that a higher rating for the Veteran’s hepatitis C, the appeal is denied. Since there is no evidentiary basis upon which to assign a higher rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505. Thus, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.