Citation Nr: A19003374 Decision Date: 12/06/19 Archive Date: 12/06/19 DOCKET NO. 190221-2980 DATE: December 6, 2019 ORDER Entitlement to an evaluation of 50 percent for tension headaches with migraine features is granted. Entitlement to an evaluation of major depressive disorder in excess of 70 percent is denied. Entitlement to an evaluation of cirrhosis of the liver in excess of 10 percent for the period from November 15, 2013, to July 19, 2015 is denied. Entitlement to an evaluation of cirrhosis of the liver in excess of 50 percent on and after July 19, 2015, is denied. Entitlement to an evaluation in excess of 40 percent for hepatitis C is denied. Entitlement to a total disability evaluation based on unemployability (TDIU) is granted for the period from June 1, 2014 to July 19, 2015. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for fibromyalgia is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran’s tension headaches with migraine features are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran’s persistent depressive disorder has been manifested by occupational and social impairment with deficiencies in most areas, but total occupational and social impairment has not been shown. 3. Prior to July 19, 2015, the Veteran’s cirrhosis resulted in generalized weakness, fatigue, abdominal pain, hepatomegaly, occasional nausea or indigestion but was otherwise stable. 4. On and after July 19, 2015, the Veteran’s cirrhosis resulted in no more than one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy. 5. The evidence of record fails to demonstrate entitlement to an increased rating greater than 40 percent for service-connected hepatitis C. 6. The Veteran has been rendered unable to maintain substantially gainful employment as a result of her service-connected disabilities from June 1, 2014, to July 19, 2015. 7. The Veteran’s tinnitus did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 8. The Veteran’s fibromyalgia is not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 50 percent for tension headaches with migraine features are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8100 (2018). 2. The criteria for an initial rating in excess of 70 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103A, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.130, Diagnostic Code 9434 (2018). 3. Prior to July 19, 2015, the criteria for an evaluation in excess of 10 percent for cirrhosis were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7312 (2018). 4. On and after July 19, 2015, the criteria for an evaluation in excess of 50 percent for cirrhosis were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7312 (2018). 5. For the period on appeal, the criteria for a rating in excess of 40 percent for service-connected hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7354 (2018). 6. Resolving reasonable doubt in favor of the Veteran, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.15, 4.16 (2018). 7. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 8. The criteria for service connection for fibromyalgia on a secondary basis have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to July 1988. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. In August 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d). In January 2019, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claims. In February 2019, the Veteran filed a notice of disagreement to the AOJ decision and selected the Board of Veteran’s Appeals (Board) “Evidence Lane.” In acknowledgement of this selection, the Board sent a letter informing the Veteran she had 90 days to submit additional evidence to the Board. Within the 90-day period, the Veteran submitted a July 2019 statement in support of her claims. As the 90-day period has expired, the matter is now properly before the Board for adjudication. Increased Ratings Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. 1. Entitlement to an evaluation in excess of 30 percent for tension headaches with migraine features from August 25, 2014, to January 15, 2019 The Veteran’s tension headaches with migraine features are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 for migraines. Under Diagnostic Code 8100, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the highest available rating under Diagnostic Code 8100, is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define prostrating as used in Diagnostic Code 8100. By way of reference, the Board notes that according to Webster’s New College Dictionary 909 (3d ed. 2008), “prostrate” is defined as physically or emotionally exhausted. The word incapacitated is listed as a synonym. A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007), in which prostration is defined as extreme exhaustion or powerlessness. Also, the term “productive of severe economic adaptability” has not been clearly defined by regulations. The Court of Appeals for Veterans Claims (Court) has, however, explained that “productive of” for purposes of Diagnostic Code 8100 can either mean producing or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Similarly, economic inadaptability does not equate to unemployability, as such would undermine the purpose of regulations pertaining to TDIU ratings. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. In her November 2014 notice of disagreement, the Veteran stated that she has headaches daily, as well as weakness and vision difficulty. The Veteran submitted a statement in April 2019, stating that her headaches are her worst disability. She reported that her headaches are so debilitating, she cannot function. Specifically, she avers being unable to talk, walk without dizziness, has moderate to severe pain with auras, nausea and blurred vision. She indicated the frequency of her headaches are approximately 21 to 25 per month, and that she has been treated with injections. However, the Veteran states she still has headaches almost every day and has stayed in bed all day in pain for several days per month. The Veteran was afforded a VA examination in October 2014. She reported worsening headaches, which sometimes affect her vision, and are productive of nausea, photophobia, phonophobia, intermittent emesis and dizziness. Symptoms of constant, pulsating headache pain which is localized and worsens with physical activity were noted. Non-headache symptoms were noted to include nausea, sensitivity to light and sound, and trouble sleeping. Characteristic prostrating attacks were noted at a frequency of once per month. Though the examiner opined that the Veteran’s migraines were not productive of severe economic inadaptability, it was noted that the Veteran’s migraines impact her ability to work. Specifically, the examiner stated the Veteran may have limitations due to severe headache pain with manual labor tasks and sedentary employment. The Veteran was afforded another VA examination in August 2018. The examiner noted that the Veteran was diagnosed in 2013 with migraines, which have worsened to the point that she has over 15 days of headaches per month, lasting for greater than two to three days per week at times. It was indicated that the Veteran was prescribed daily medication for her migraines. The examiner opined that the Veteran has very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. Based on the above, the Board finds that a rating of 50 percent for the Veteran’s service-connected tension headaches with migraine features is warranted. It is clear that the Veteran experiences severe prostrating attacks of headaches at a frequency greater than once a month. In this regard, the Board finds pertinent the October 2014 examiner’s opinion that the Veteran’s headaches cause significant functional impact, including with physical and sedentary tasks. Furthermore, the August 2018 VA examination is persuasive in that the examiner notes that the Veteran has severe headaches at a frequency of at least 15 days per month, and that her very prostrating and prolonged attacks of headaches are productive of severe economic inadaptability. Headaches are the type of condition that is readily amenable to lay diagnosis as they are subjective to the claimant; thus, the Veteran is competent to report her symptoms and their frequency. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has provided several statements which detail her pain and the frequency of symptoms. Nothing in the record contradicts her statements, and her statements are consistent with the medical record. She is also competent to report as to the impact this condition has on her work. The Board finds the Veteran’s statements credible and probative. Further, the Board notes that economic inadaptability is not the same as unemployability, and the fact that the Veteran may have sustained some employment is not necessarily indicative of an absence of severe economic inadaptability. In summary, resolving all reasonable doubt in the Veteran’s favor, the Veteran’s tension headaches with migraine features have been prostrating and prolonged resulting in severe economic inadaptability, warranting a 50 percent rating. 2. Entitlement to an evaluation of major depressive disorder in excess of 70 percent from April 7, 2013, to January 15, 2019 Depressive disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, a 70 percent is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio, 713 F.3d at 117-18. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). The Board first acknowledges a January 2015 statement from Dr. A.A., a clinical psychologist, who opines that since the year prior, the Veteran has been unable to work as a result of her depressive disorder. The Board notes that beyond a statement that Dr. A.A. had been seeing the Veteran in therapy over a period of five years, no further rationale was provided. A June 2015 letter from a VA psychiatrist, Dr. W.S., notes that the Veteran’s combination of disabilities renders her unemployable, and that her depression and anxiety are made worse by her physical symptoms. The Veteran was afforded a VA examination in March 2016 to assess the nature and severity of her depression. The examiner noted that the Veteran was diagnosed with major depressive disorder. The examiner found that the Veteran’s condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported symptoms of depressed mood, irritability, chronic fatigue and short-term memory problems. She also reported anxiety attacks, sadness, feelings of hopelessness, not taking care of herself, difficulty communicating or comprehending and some paranoia. The examiner acknowledged the Veteran’s reports, and noted that her affect was congruent with her reported mood. The Veteran denied suicidal ideation, was assessed to be appropriately groomed, did not appear to neglect her appearance and had otherwise unremarkable results in her mental status examination. The examiner indicated that the symptoms actively applying to the Veteran’s diagnosis are depressed mood, anxiety and disturbance of motivation and mood. Behavioral observations included: she was dressed appropriately and with good hygiene; appeared alert and oriented to time, place and person; she was cooperative and responsive to questions; had appropriate eye contact; spontaneous speech with normal rhythm, rate, tone and volume; had linear thought processes, with thought content appearing to be goal oriented, free of paranoia, delusions, obsessions, and ideas of reference; she denied suicidal and homicidal ideation; reported never being in a good mood. The examiner indicated that the Veteran’s symptoms continue to cause her daily problems and appear moderate in nature. Pertinently, the examiner opined that there is nothing in the evaluation to suggest that the Veteran’s symptoms of depression alone would preclude her from obtaining gainful employment, as they do not impact her ability to engage in physical and sedentary work if she chooses. In March 2017, Dr. W.S. again submitted a letter opining the Veteran is unemployable. Dr. W.S. noted the Veteran’s treatment included behavioral health treatment, psychotherapy and group therapy. It was noted that the Veteran suffers from psychiatric symptoms including major depression accompanied by psychotic symptoms, including hallucinations, anxiety, lethargy, anhedonia, hopelessness and passive suicidal ideation. The Veteran’s VA medical records generally indicate continued group and psychotherapy for depression. The Board acknowledges the lay statements of record, including the Veteran’s own statements regarding her depression symptoms. The Board finds that the preponderance of the evidence is against a higher evaluation of 100 percent. In this regard, the Board notes that the most probative evidence of record is the latest March 2016 VA examination. It was an in-depth clinical evaluation of the Veteran’s depression, and the Veteran’s own reports were acknowledged and considered by the examiner. The Veteran was consistently alert and fully oriented; her thought processes and communications were not grossly impaired; and her speech was consistently within normal limits. The evidence of record clearly shows that the Veteran did not have persistent delusions or hallucinations, or grossly inappropriate behavior. Though the record is indicative of confusion and memory loss, as well as passive suicidal ideation, there is no medical or lay evidence that the Veteran was a persistent danger to herself or others. In this regard, the Veteran denied suicidal or homicidal ideation in her March 2016 VA examination. The evidence of record further shows that the Veteran was able to maintain minimal personal hygiene. Further, although there were some reports of memory problems, there has been no finding that the Veteran’s memory loss was to such an extent that she consistently did not remember names of close relatives, her own occupation, or her own name. In sum, the Board finds that the degree of impairment caused by the Veteran’s depressive disorder is adequately contemplated by the current 70 percent rating. There is simply no showing of total occupational and social impairment to warrant the next-higher 100 percent evaluation. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Nevertheless, the Board finds that the competent medical evidence offering detailed specific determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of her symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In conclusion, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 70 percent for depressive disorder. In denying an increased rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial evaluation of cirrhosis of the liver in excess of 10 percent from November 15, 2013, to July 19, 2015 4. Entitlement to an evaluation of cirrhosis of the liver in excess of 50 percent from July 19, 2015, to January 15, 2019 The record reflects that the RO granted an initial 10 percent rating for the Veteran’s cirrhosis of the liver associated with hepatitis C. The RO increased the Veteran’s rating for her cirrhosis of the liver to 50 percent effective July 19, 2015. Cirrhosis of the liver is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7312, which provides that a 10 percent rating is warranted for symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating is warranted for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. Cirrhosis with history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 50 percent disabling. Cirrhosis with history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks, is rated 70 percent disabling. Cirrhosis with generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis), is rated 100 percent disabling. A Note to DC 7312 provides that, for rating under DC 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114. For purposes of evaluating conditions under Diagnostic Code 7312, the term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. In addition, the term “inability to gain weight” means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and “baseline weight” means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. On a VA examination in September 2013, the Veteran was confirmed to have a diagnosis of hepatitis C. However, while a note in the Veteran’s VA treatment record stating she has the potential to develop cirrhosis of the liver was acknowledged, it was noted that the Veteran did not have cirrhosis of the liver at the time of the examination. This was based on a review of imaging and medical records. Indeed, the examiner noted a June 2013 CT scan of the abdomen showing an enlarged liver, enlarged pericardial lymph nodes, and splenic enlargement. The examiner also noted a July 2013 CT scan showing two renal cysts and a lesion in the right kidney. A May 2013 ultrasound of the liver was also acknowledged. The ultrasound showed a persistent large moderately fatty infiltrated liver, as well as splenomegaly. It was noted that laboratory studies were conducted, showing hepatitis C, but no other significant diagnostic findings. The examiner noted that the Veteran presented with signs and symptoms attributable to her hepatitis C, including daily fatigue, daily arthralgia, intermittent right upper quadrant pain, and hepatomegaly requiring dietary restrictions. No incapacitating episodes due to a liver condition were noted to have occurred over the previous 12 months. The examiner indicated that the Veteran had no signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. Furthermore, the Board notes that the examiner indicated the Veteran’s fatigue and arthralgias could be secondary to either her fibromyalgia or hepatitis C. The Veteran was afforded another VA examination in August 2014. It was again noted that the Veteran did not have cirrhosis of the liver at the time of the examination, though a diagnosis of hepatitis C was acknowledged. Symptoms attributable to her hepatitis C included daily fatigue, daily arthralgia, intermittent right upper quadrant pain, and hepatomegaly requiring dietary restrictions. No incapacitating episodes due to a liver condition were noted to have occurred over the previous 12 months. The examiner indicated that the Veteran had signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis, including intermittent weakness. The examiner noted a June 2014 scan and ultrasound of the abdomen which was conducted for the purpose of follow-up of cirrhosis and known angiomyolipoma of the right kidney. Enlarged liver, splenomegaly, and a mass on the anterior right kidney were noted. The examiner also noted a July 2013 CT scan showing two subcentimeter renal cysts and a lesion in the right kidney. A November 2013 liver biopsy was also noted, showing Hepatitis C, grade 2-3 inflammation, stage 3-4 fibrosis bridging cirrhosis, hepatomegaly, fatty liver, elevated liver enzymes, and fibromyalgia. The examiner indicated that the Veteran’s physical symptoms are attributable both to fibromyalgia and hepatitis C. The Board acknowledges the positive finding of the September 2014 rating decision, which conceded that the Veteran had a diagnosis of cirrhosis beginning in November 2013, pursuant to the results of the aforementioned liver biopsy. Indeed, though both the September 2013 and August 2014 VA examiners noted that the Veteran did not have a diagnosis of cirrhosis of the liver, the November 2013 liver biopsy specifically noted a finding of “stage 3-4 fibrosis bridging cirrhosis.” Furthermore, the stated purpose of the biopsy and a June 2014 scan and ultrasound was for follow up of the Veteran’s history of cirrhosis. In addition, though the August 2014 examiner did not confirm the Veteran’s diagnosis of cirrhosis of the liver, the examiner did state that she had signs or symptoms attributable to cirrhosis, including intermittent weakness. VA treatment records showed that in November 2014, the Veteran was assessed to have cirrhosis from hepatitis C. An ultrasound of the abdomen in March 2015 revealed evidence of mild to moderate upper quadrant ascites, splenomegaly and a right kidney cortical solid mass. In her October 2014 notice of disagreement, the Veteran disagreed with the 10 percent evaluation for cirrhosis, stating that it was affecting every part of her life and she could no longer work. After reviewing the record, the Board concludes, first, that the criteria for a higher initial rating of 30 percent for cirrhosis have not been met prior to July 19, 2015. Although the Veteran has multiple symptoms resulting from liver conditions, including daily fatigue, daily arthralgia, intermittent right upper quadrant pain, and hepatomegaly requiring dietary restrictions – as shown consistently in both the September 2013 and August 2014 VA examinations – the only symptom specifically noted to be attributable to cirrhosis of the liver during this appellate period is intermittent weakness. See August 2014 VA examination. The other symptoms noted on VA examination and in VA medical records were specifically attributed to the Veteran’s hepatitis C, which is separately evaluated and service-connected, and fibromyalgia. Because the same manifestations of hepatitis C are not to be evaluated under the different diagnosis of cirrhosis of the liver, as this would constitute impermissible pyramiding, the Board concludes that the criteria for an initial rating in excess of 10 percent for the Veteran’s cirrhosis of the liver under DC 7312 have not been met prior to July 19, 2015. 38 C.F.R. §§ 4.7, 4.114, DC 7354. Turning to the period on and after July 19, 2015, the Board notes that the Veteran was afforded a VA examination in March 2016. The diagnosis of hepatitis C with cirrhosis of the liver was confirmed. The Veteran reported pain in the abdomen, as well as ascites, nausea, diarrhea and weight gain. Signs or symptoms attributable to cirrhosis were noted as near constant and debilitating abdominal pain, as well as ascites with periods of remission between attacks. Imaging studies were referenced to include a November 2015 CT scan, showing probable cirrhosis with hepatosplenomegaly and minimal ascites. Review of private medical records reflects that the Veteran underwent a CT scan of the abdomen in October 2015, with findings consistent with chronic liver disease and portal hypertension. Also of record are private gastroenterology records dated from January 2016 to February 2017. In January and May 2016, though the Veteran endorsed symptoms of abdominal pain and nausea, she denied ascites. A July 2016 treatment note reflects that the Veteran underwent an ultrasound which showed mild hepatomegaly with mild hepatic steatosis. A July 2016 note reflects a diagnosis of hepatic encephalopathy. A December 2016 note indicates that the Veteran has a history of ascites, and mild portal hypertension. The Veteran did not recall having had any encephalopathies and denied jaundice and significant abdominal pain. It was also noted that the Veteran had no known gastroparesis. Review of VA medical records generally shows consistent reports of abdominal pain, fatigue and nausea. A November 2017 pharmacy note reflects that the Veteran had ascites controlled with medication, and that she had a mild encephalopathy. Indeed, a December 2017 note makes reference to a documented mild encephalopathy. In January 2018, the Veteran was noted to have cirrhosis and hepatitis C with ascites. Upon review of the record, the Board finds that, for the period from July 19, 2015, a rating in excess of 50 percent for cirrhosis of the liver is not warranted. Here, the evidence of record does not reveal that the Veteran had a history of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis) at any time during the relevant period on appeal to warrant the next higher 70 percent rating. In this regard, the record reflects that the Veteran had one documented hepatic encephalopathy, documented in July 2016 private treatment records, and confirmed in November 2017 VA pharmacy records. The Veteran also had one documented episode of ascites, confirmed by CT scan in November 2015 and the March 2016 VA examination. However, two or more episodes of either encephalopathy or ascites are not shown in the record, nor are episodes of hemorrhage from varices or portal gastropathy. In sum, the evidence simply does not support a finding that a rating in excess of 50 percent is warranted on and after July 10, 2015. Therefore, the Board finds that the preponderance of the evidence is against the claim for higher ratings, and the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to an evaluation in excess of 40 percent for hepatitis C from June 1, 2014, to January 15, 2019. The Veteran’s hepatitis C is rated under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7354 (2018). Under these criteria, a 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). A 60 percent rating is warranted where hepatitis C manifests 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. A 40 percent rating is warranted 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. Note (1) indicates that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under DC 7354. Note (2) indicates that, for purposes of evaluating 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. The term “substantial weight loss” means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer. The term “minor weight loss” means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. In addition, the term “inability to gain weight” means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and “baseline weight” means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. The schedular rating for hepatitis C under DC 7354 involves successive rating criteria; i.e., the criteria for a higher rating include those of a lesser rating, such that the higher rating is not warranted if the criteria for the lower rating are not met. See Camacho v. Nicholson, 21 Vet. App. 360, 366-67 (2007) (explaining that where a DC establishes a successive rating criteria, a claimant must meet all of the requirements of a lower rating criteria before she can be eligible for a higher rating criteria); see also Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (distinguishing between rating schedules that establish successive rating criteria from those where the criteria necessary for a higher rating are not dependent upon meeting the criteria of a lower rating and noting that it was not error by stating that § 4.7 does not apply). In August 2014, the Veteran was afforded a VA examination to assess the nature and severity of her hepatitis C. Symptoms attributable to her hepatitis C were noted to include: daily fatigue; daily malaise; daily arthralgia; hepatomegaly; and dietary restrictions including avoiding alcohol. Pertinently, the examiner assessed that the Veteran had not had any incapacitating episodes due to hepatitis c during the previous 12 months. Furthermore, a referenced August 2014 hepatology note indicates that the Veteran had no weight loss. In March 2016, the Veteran was afforded an additional VA examination to assess the nature and severity of her hepatitis C. Symptoms attributable to her hepatitis C were noted to include nausea, right upper quadrant pain and hepatomegaly. Near constant and debilitating abdominal pain were noted, but attributed by the examiner to cirrhosis of the liver, and not hepatitis C. Pertinently, the examiner assessed that the Veteran had not had any incapacitating episodes due to hepatitis C during the previous 12 months. In fact, the Veteran herself endorsed significant weight gain. The Board has reviewed the Veteran’s VA and private treatment records. A March 2015 ultrasound shows that the Veteran had mild hepatomegaly and mild hepatic steatosis. A June 2016 note indicates that the Veteran’s hepatitis C had relapsed after she finished treatment in January 2016. Of note, a March 2017 treatment note references the Veteran’s report that she was feeling well with regard to physical symptoms of hepatitis treatment. Also, a June 2017 VA treatment note indicates that the Veteran’s hepatitis C was in remission thanks to her medications, and that she is shown to be without the virus. Private treatment records were also reviewed. During a January 2016 treatment note, the Veteran denied nausea, vomiting and weight loss. She endorsed diffuse abdominal pain and tenderness to the right upper quadrant. A May 2016 note indicates that the Veteran finished her hepatitis treatment in February 2016. In July 2016, the Veteran was shown to have mild hepatomegaly, early satiety and abdominal pain. In December 2016, the Veteran reported fatigue, nausea, reflux, leg swelling, dizziness and abdominal pain. Finally, a February 2017 note shows that the Veteran gained weight and was negative for any gastrointestinal symptoms. To summarize, during the appellate period, the Veteran is shown to have had symptoms of daily fatigue, malaise, and arthralgia; right upper quadrant pain, hepatomegaly, nausea, and abdominal pain. At no point was the Veteran shown to have any weight loss. In fact, the Veteran endorsed significant weight gain during the March 2016 VA examination. Furthermore, in neither VA examination, nor in any of the Veteran’s treatment notes or lay statements of record was she shown to have had any incapacitating episodes having a total duration of at least six weeks. Therefore, the Veteran does not meet the criteria for a 60 percent evaluation for her hepatitis C at any point during the appeal period. Accordingly, a rating in excess of 40 percent for hepatitis C is not warranted. 6. Entitlement to a total disability evaluation based on unemployability (TDIU) from June 1, 2014, to July 19, 2015 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran’s service-connected disability or disabilities preclude him or her from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran’s service-connected disability or disabilities do not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The Veteran claimed entitlement to a TDIU in an April 2014 statement, indicating she has been unable to work since February 2014. The Veteran is service connected for major depressive disorder, evaluated as 70 percent disabling; cirrhosis of the liver, evaluated as 10 percent disabling prior to July 19, 2015, and as 50 percent disabling thereafter; hepatitis C, evaluated as 100 percent disabling prior to June 1, 2014, and as 40 percent disabling thereafter; and tension headaches with migraine features, evaluated as 50 percent disabling. As noted, both prior to June 1, 2014, and as of July 19, 2015, her combined disability rating is 100 percent. Thus, the relevant period on appeal for purposes of entitlement to a TDIU is from June 1, 2014, to July 19, 2015. In so finding, the Board holds that to assign a separate TDIU rating based on the combined symptomatology of the Veteran’s service-connected disabilities, in addition to a combined schedular rating of 100 percent, would be pyramiding and is prohibited by 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As the totality of the Veteran’s service-connected symptomatology has been considered in the combined schedular 100 percent rating assigned prior to June 1, 2014, and as of July 19, 2015, to compensate the same symptoms by way of a separate award of TDIU would be pyramiding. 38 U.S.C. § 1114(s), Bradley v. Peake, 22 Vet. App. 280 (2008). Based on a review of the evidence, the Board concludes that an award of TDIU for the period from June 1, 2014, to July 19, 2015, is warranted. Pertinently, the Board acknowledges a January 2015 letter from Dr. B.W., a hepatologist/gastroenterologist, who states clearly that the Veteran is unable to be employed due to her disabilities. In addition, Dr. A.A., a clinical psychologist, writes in a January 2015 letter that the Veteran was unable to work over the previous year due to her service-connected depressive disorder. Furthermore, the Board notes that Dr. W.W. writes in a March 2017 letter that the Veteran is completely and totally disabled and is unemployable for even the most simple and menial jobs. After reviewing all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran’s service-connected disabilities have prevented her from maintaining substantially gainful employment from June 1, 2014, to July 19, 2015. The evidence shows that it is the totality of the Veteran’s disabilities that render her unemployable. See 38 C.F.R. § 4.14(a). It is the Board’s finding that the Veteran’s exertional limitations, physical limitations and significant psychiatric symptoms combine to render her unable to maintain substantially gainful employment. Furthermore, the Board finds the lay statements of record to be credible. Finally, the Board notes that the medical opinions of record which address the combination of the Veteran’s service-connected disabilities, rather than the functional impact of a singular disability, are in agreement that the Veteran was unemployable from June 1, 2014, to July 19, 2015. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the combined effect of the Veteran’s service-connected disabilities for the period from June 1, 2014 to July 19, 2015 is of sufficient severity to have rendered her unable to obtain and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. For the period prior to June 1, 2014 and after July 19, 2015, the question of an award of TDIU is moot for the reasons explained above. Service Connection Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d. 1163 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). 7. Entitlement to service connection for tinnitus The Veteran contends that she has tinnitus that is related to her period of active service. Specifically, she states that her work around airplanes and loud machinery while on active duty caused her tinnitus, and that her ears ring all the time, causing difficulty when hearing conversations. See April 2019 statement. The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has tinnitus, which is a chronic disease under 38 C.F.R. § 3.309(a), the condition did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Veteran’s service treatment records are silent as to any complaints or diagnosis of tinnitus, and she was noted to have normal ears and hearing at her January 1988 separation report of medical examination. In fact, in her separation report of medical history, the Veteran denied hearing loss. She did note ear nose or throat trouble, but explained that she was referring to a turbinectomy, which is unrelated to her ears or hearing. Post-service VA treatment records reflect that her initial audiology evaluation was in November 2018, when she complained of vertigo and intermittent tinnitus. The Board notes that the Veteran was afforded a VA examination to assess the nature and etiology of her tinnitus in September 2017. The examiner confirmed the Veteran’s diagnosis of tinnitus. However, the Board notes that the Veteran reported the onset of the tinnitus symptoms to have been five years prior to this examination. Furthermore, the examiner opined that the Veteran’s tinnitus is less likely than not related to service, as the onset of the tinnitus was five years prior to the examination, well after separation from the military. It is also noted in the examination that the Veteran’s entrance and separation examinations had normal audiological findings. Service connection for tinnitus may still be granted on a direct basis. However, the Board concludes that although the Veteran has a current diagnosis of tinnitus, and concedes his in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a), (d). There is simply no evidence of record to support a finding that the Veteran’s tinnitus is due to active service. Consideration has been given to the Veteran’s assertions that her tinnitus is etiologically related to service. While the Veteran is competent to report symptoms that are within the realm of her personal experience, a diagnosis that is later confirmed by clinical findings, or a contemporary diagnosis, she is not competent to independently opine as to the specific etiology of his claimed condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, as a layperson, the Veteran is not competent to opine on a complex medical question of etiology such as whether her tinnitus is due to noise exposure in service, as this requires medical expertise. Consequently, lay assertions of etiology cannot constitute evidence upon which to grant the claim for service connection in this case. For this purpose, the Board finds the lay statements of record have little probative value. In fact, the Veteran’s own statements indicate that the tinnitus had its onset approximately 24 years after separation from service. The Board also notes that the Veteran does not contend her symptoms were chronic since service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established, and the claim must be denied. 8. Entitlement to service connection for fibromyalgia The Veteran asserts that her service-connected hepatitis C caused her fibromyalgia. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by, service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of fibromyalgia, the preponderance of the evidence is against finding that the Veteran’s fibromyalgia is proximately due to or the result of, or aggravated beyond its natural progression by, service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The December 2012 VA examiner opined that the Veteran’s fibromyalgia is not likely due to her hepatitis C. The rationale was that although there is some indication in medical literature that hepatitis C and fibromyalgia may co-occur, there is no medical evidence currently establishing that hepatitis C causes or aggravates fibromyalgia. The Veteran believes her fibromyalgia is proximately due to or the result of a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As the weight of the competent and probative evidence of record does not support a finding that the Veteran’s fibromyalgia is caused or aggravated by her hepatitis C, there is no doubt to be resolved, and the claim is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.C., 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.