Citation Nr: 19192009 Decision Date: 12/06/19 Archive Date: 12/06/19 DOCKET NO. 14-44 113A DATE: December 6, 2019 ORDER Entitlement to service connection for Hepatitis C is denied. Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s Hepatitis C is due to or the result of the Veteran’s active service. 2. Throughout the appeal period, the Veteran’s TBI residuals have been manifested by no more than level “1” impairment in any of the facets of cognitive impairment and other residuals of TBI not otherwise classified. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Hepatitis C have not been met. 38 U.S. C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to November 1976. In December 2017, the Veteran testified at a Board hearing via videoconference before a Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2018, the Board remanded the issues above as well as entitlement to service connection for bilateral hearing loss and tinnitus for VA examinations. In a June 2019 rating decision, service connection was granted for bilateral hearing loss and for bilateral tinnitus, and, as the full benefit sought on appeal has been awarded, those issues are no longer before the Board. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § § 3.303 (a) (2017). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for Hepatitis C The Veteran contends that his Hepatitis C was contracted in service. Specifically, the Veteran asserted, in his December 2014 substantive appeal and at his December 2017 Board hearing, that he was exposed to blood when he tried to help wrap two of a fellow service member’s fingers that were cut off and that he recalled having symptoms of fever, nausea, muscle and joint pain after being exposed. A review of the Veteran’s service treatment records (STRs) shows that there was no treatment or diagnosis of Hepatitis C in service. Additionally, the Veteran’s entrance and separation examinations show no evidence of tattoos or body piercings on entrance to active duty or at the time of separation from active duty. Post-service VA treatment records reflect that the Veteran was diagnosed with Hepatitis C in November 2008, after a routine lab work showed elevated liver function. The Veteran has been treated with medication management and diagnostic testing and in March 2017 he was notified that his Hepatitis C had been cured. An August 2018 VA examiner opined that it is less likely than not that the Veteran’s Hepatitis C had onset in or is directly related to his active duty service. The rationale provided was that although the Veteran’s account of blood exposure externally from another soldier’s cut fingers/hand is credible, the risk from this type of external exposure is low. The risk is higher if the blood transmission is from a large bore needle that penetrates the skin. The examiner also stated the Veteran has risk factors of body piercings and tattoos that likely occurred following active duty as they were not noted on enlistment or separation examinations. Additionally, the examiner noted the Veteran’s report of spending time in jail which literature suggests has some impact on transmission/risk factors. Lastly, the examiner noted that the Veteran has received treatment and as of March 2017, his Hepatitis has been cured according to the VA treatment notes. The Board has considered the Veteran’s contention that his diagnosis of Hepatitis C was a result external exposure to blood from a fellow service member while on active duty; however, the medical evidence does not show that the Veteran has a current Hepatitis C disability that had its onset in service or is otherwise related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a diagnosis and etiology of Hepatitis C falls outside the realm of common knowledge of a lay person. The Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on a complex medical question. Here, there is no competent medical evidence linking the Veteran's post-service diagnosis of Hepatitis C to the Veteran's military service. Accordingly, the preponderance of the evidence is against the claim for service connection for Hepatitis C, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. § Part 4 (2018). The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § § 4.1 (2018). The Veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. § §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § § 4.2 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). In both initial rating claims and normal increased rating claims, the Board must discuss whether any “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) The Veteran contends that he should be assigned a higher rating for his TBI residuals. The Veteran's TBI disability is evaluated under Diagnostic Code 8045, which states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, is to be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI; residuals not listed in DC 8045 that are reported on an examination are to be evaluated under the most appropriate diagnostic code, with each condition rated separately, as long as the same signs and symptoms are not used to support more than one evaluation and combined under 38 C.F.R. § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. An additional consideration is the potential need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and level 5, the highest level of impairment, labeled total. However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than total, since any level of impaired consciousness would be totally disabling. Assign a 100 percent rating if total is the level of evaluation for one or more facets. If no facet is evaluated as total, assign the overall percentage rating based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent rating if 3 is the highest level of evaluation for any facet. Id. The current version of Diagnostic Code 8045 contains the following notes: Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental, neurologic, or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one rating based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single rating under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate rating for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): Instrumental activities of daily living refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. Those activities are distinguished from activities of daily living, which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. That classification does not affect the rating assigned under diagnostic code 8045. The Veteran’s service treatment records (STRs) reflect that the Veteran was treated for a head injury in service after reportedly being attacked by fellow service members. A February 1974 treatment note reflects that the Veteran received sutures to the right side of his head. There is no evidence in the STRs of other associated conditions or residuals resulting from that injury during the two years after his injury prior to separation from service. Post-service treatment records reflect that the Veteran’s headaches are managed with daily preventative medication and acute medication as needed. A review of the Veteran’s VA treatment records does not show that the Veteran has symptoms of his TBI that are worse than those reported at his VA examinations. In April 2013, the Veteran was afforded a VA TBI examination. The Veteran reported being assaulted in service and waking up in the hospital. The injury required sutures but no surgical intervention. He also stated he has experienced headaches since service and intermittent pain at the site of the assault. The Veteran also stated he had a history of hearing loss and gradual tinnitus. The examiner noted a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The examiner noted normal judgment, routinely appropriate social interaction, normal orientation, normal motor activity, normal visual spatial orientation, subjective symptoms that do not interfere with work, instrumental activities of daily living or family or other close relationships, no neurobehavioral effects, no communication deficits, and normal consciousness. The examiner noted the Veteran did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI (such as migraine headaches or Meniere’s disease). The examiner opined that it was at least as likely as not the Veteran’s TBI was incurred in or caused by the claimed in-service injury, event, or illness. As for the Veteran’s headaches, the examiner noted there were no complaints of headache during the evaluations of the Veteran’s skull and suture checks and therefore the examiner determined headaches are not likely related to the Veteran’s mild head injury. At a July 2016 Residuals of TBI VA examination, the Veteran reported that sometimes he forgets what he went to do. He also stated he felt sad and depressed, which the examiner stated in her professional judgment was not due to the TBI. The examiner noted a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The examiner noted normal judgment, routinely appropriate social interaction, normal orientation, normal motor activity, normal visual spatial orientation, subjective symptoms that do not interfere with work, instrumental activities of daily living or family or other close relationships, no neurobehavioral effects, no communication deficits, and normal consciousness. At an August 2018 Residuals of TBI VA examination, the Veteran reported current symptoms of intermittent daily severe occipital headache along with mild memory loss. The examiner noted a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The examiner noted normal judgment, routinely appropriate social interaction, normal orientation, normal motor activity, normal visual spatial orientation, subjective symptoms that do not interfere with work, instrumental activities of daily living or family or other close relationships, no neurobehavioral effects, no communication deficits, and normal consciousness. The evaluation assigned for cognitive impairment and other residuals of traumatic brain injury not otherwise classified is based upon the highest level of impairment for any facet as determined by examination. Only one disability evaluation is assigned for all the applicable facets. In this case, the overall evidence warrants a 10 percent evaluation based upon the evidence of record. Specifically, the highest level of impairment of any facet in this case is a level "1." Regarding the memory, attention, concentration, and executive functions facet, the Veteran was assigned a level of impairment of "1" based on his reports of mild loss of memory. In order to warrant a higher level of impairment of "2", the evidence would have to show objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions. For the judgment facet, the Veteran was assigned a “0” level of impairment based on normal judgment at all the VA examinations. For the facet social interaction, a "0" level of impairment is appropriate for the entire appeal period. The April 2013, July 2016, and August 2018 VA examinations documented that the Veteran's social interaction was appropriate, and there is no other evidence that the Veteran's social interaction was inappropriate. For the facet orientation, a "0" level of impairment is appropriate for the entire appeal period. Treatment records and VA examination reports found that the Veteran was regularly oriented in all four aspects. There is no clinical evidence of record showing impaired orientation. For the facet motor activity, a "0" level of impairment is appropriate for the entire appeal period. The April 2013, July 2016, and August 2018 VA examiners noted normal motor activity, and this is supported by the evidence of record. For the facet visual spatial orientation, a "0" level of impairment is appropriate for the entire appeal period as there is no clinical evidence of record reflecting any deficiency in this area. For the facet subjective symptoms, a "0" level of impairment is appropriate. The only subjective symptoms reported by the Veteran is headaches of varying degrees, which the April 2013 VA examiner specifically found to be unrelated to the Veteran's TBI. The August 2018 VA examiner noted the Veteran provided a history that diesel sometimes gave him headaches and determined it was not related to TBI. For the facet neurobehavioral effects, a "0" level of impairment is appropriate. The July 2016 VA examiner found the Veteran’s report of sadness and depression to be unrelated to TBI and there is no clinical evidence linking it to TBI. For the facet communication, a "0" level of impairment is appropriate. The April 2013 examiner found that the Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. The Veteran demonstrated no impairments in this area on any of the other examinations of record and there is no clinical evidence showing impaired communication. For the facet consciousness, a "0" level of impairment is assigned because the Veteran demonstrates no impairment in this area and there is no clinical evidence of record showing impaired consciousness. Thus, the Veteran's highest level of impairment in any facet is a "1." Accordingly, a rating in excess of 10 percent is not warranted. The Veteran is competent to describe the symptoms related to his residuals of a TBI. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to address complex medical issues, such as identifying a specific level of disability according to the appropriate Diagnostic Code. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, while credible in his belief that a higher rating is warranted, the Veteran's contentions regarding the appropriate rating are outweighed by the competent medical evidence that evaluates the true extent of his disability. The Board has considered whether any other potentially relevant Diagnostic Codes would yield higher ratings for the Veteran's TBI residuals. However, when a condition is specifically listed in the Rating Schedule, it may not be rated by analogy. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (pes planus is specifically rated under Diagnostic Code 5276; hence an analogous rating under Diagnostic Code 5284 was not permitted). Thus, Diagnostic Code 8045 is the most appropriate considering the TBI diagnosis and symptoms. The Board finds that, throughout the appeal period, the disability picture associated with the Veteran's TBI residuals most nearly approximated the criteria for a rating of 10 percent, but no higher. As a preponderance of the evidence is against the award of a rating in excess of 10 percent, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, Associate Counsel 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.