Citation Nr: 19194736 Decision Date: 12/17/19 Archive Date: 12/17/19 DOCKET NO. 16-14 548 DATE: December 17, 2019 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected hepatitis C with parenchymal liver disease from June 27, 2007 to September 29, 2011 and in excess of 20 percent thereafter is denied. Entitlement to a 40 percent evaluation, but not higher, for service-connected hepatitis C with parenchymal liver disease, beginning July 9, 2019 is granted. FINDING OF FACT Between June 27, 2007 and September 29, 2011, the Veteran’s hepatitis C manifested as intermittent fatigue, malaise, arthralgia, gastrointestinal symptoms such as nausea and right upper quadrant pain without dietary restriction or continuous medication or incapacitating episodes. Between June 27, 2007 and September 29, 2011, the Veteran’s hepatitic C was characterized by daily fatigue, malaise, gastrointestinal symptoms, and right upper quadrant pain. Beginning July 9, 2019, the Veteran’s hepatitis C has been manifested by symptoms of daily fatigue, daily nausea, intermittent vomiting, weight loss and incapacitating episodes. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected hepatitis C with parenchymal liver disease from June 27, 2007 to September 29, 2011 have not been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7345. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected hepatitis C with parenchymal liver disease from September 29, 2011 to July 9, 2019 have not been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7345. criteria for a 40 percent evaluation, but no higher, for hepatitis C beginning on July 9, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to November 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision. This matter was previously before the Board in September 2018, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for a VA examination. The RO most recently readjudicated the appeal in a July 2019 supplemental statement of the case. The Board finds that VA has substantially complied with the September 2018 Board remand. Increased Rating Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence, the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of a condition as it gets worse is always complex. In this regard, the Board has reviewed the record in detail over the period in question. Hepatitis C with parenchymal liver disease from June 27, 2007 to September 29, 2011 A June 2012 rating decision granted the Veteran service connection for hepatitic C and assigned a noncompensable evaluation effective June 27, 2007, the date VA received the Veteran’s original claim for compensation. The Veteran appealed the noncompensable evaluation to the Board. In a March 2016 rating decision, the RO assigned an initial 10 percent disability rating for the period between June 25, 2007 and September 29, 2011. Because the RO did not assign the maximum disability rating possible, the Veteran’s appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Hepatitis C is rated under Diagnostic Code 7354. A 10 percent rating is warranted when the veteran has serologic evidence of hepatitis C infection and the following signs and symptoms due to the hepatitis infection: 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 20 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication; or for incapacitating episodes (with symptoms described above) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. A 40 percent rating is warranted when symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or for incapacitating episodes (with symptoms described above) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Id. A 60 percent rating is warranted when symptoms include 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. A 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Diagnostic Code 7354 provides that “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114. The RO assigned a 10 percent rating as a minimum evaluation for a symptomatic condition when the infection is not healed. A review of the Veteran’s treatment records does not show complaints of intermittent fatigue, malaise or incapacitating episodes having a total duration of at least one week in a 12-month period. Based on the above, the preponderance of the evidence is against the assignment of a rating in excess of the currently assigned 10 percent evaluation for the Veteran’s hepatitis C disability prior to September 29, 2011. Therefore, the Veteran’s claim of entitlement to an evaluation in excess of 10 percent prior to that date must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hepatitis C with parenchymal liver disease between September 29, 2011 and July 9, 2019 A March 2016 rating decision assigned a 20 percent disability rating for the Veteran’s service-connected hepatitis C beginning September 29, 2011. On September 29, 2011, the Veteran underwent a VA examination for his hepatitis C. On examination, the examiner noted signs and symptoms of near constant and debilitating fatigue, intermittent arthralgia and intermittent right upper quadrant pain. The examiner found that the Veteran had not had any incapacitating episodes within the prior 12 months. The September 2011 examination report presented the basis for the assignment of a 20 percent rating effective from the date of the examination. A higher evaluation of 40 percent is not warranted unless symptoms include daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly; or for incapacitating episodes (with symptoms described above) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. Treatment records during this time period do not show that the Veteran has required continuous medication. Although the Veteran reported daily fatigue, malaise, and minor weight loss, at no point during this period is Veteran’s liver disability manifested by hepatomegaly. Moreover, at no point between September 29, 2011 and July 9, 2019 does the Veteran report or exhibit incapacitating episodes having a total duration of at least four weeks. Based on the above, the Board finds that an increased rating, in excess of 20 percent, is not warranted for the period between September 29, 2011 and July 29, 2019. It is important for the Veteran to understand that a 20 percent disability for hepatitis causes some problems. The only question is the degree of the problem based on the criteria above. Therefore, entitlement to an increased rating, in excess of 20 percent, for hepatitis C between September 29, 2011 and July 9, 2019 is denied. Hepatitis C with parenchymal liver disease after July 9, 2019 The Veteran was afforded another VA examination on July 9, 2019. The examiner noted symptoms of daily fatigue, daily nausea, intermittent vomiting, weight loss and incapacitating episodes of at least six weeks in the prior 12 months. The examiner found no hepatomegaly and that continuous medication was not required to control the Veteran’s liver conditions. Affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in equipoise regarding the severity of the Veteran’s service-connected hepatitis C disability. For the reasons set forth above, a 40 percent rating, but no higher, for the Veteran’s service-connected hepatitis C is warranted after July 9, 2019. However, the evidence shows that the Veteran’s overall disability picture does not more nearly approximate the criteria for a 60 percent evaluation during any period of the appeal. In this case, while daily fatigue and malaise is shown, anorexia, substantial weight loss or other evidence of hepatomegaly or malnutrition are not shown. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b) 38 C.F.R. § 4.3. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victor Woehlke 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.