Citation Nr: A19003403 Decision Date: 12/10/19 Archive Date: 12/09/19 DOCKET NO. 190520-9151 DATE: December 10, 2019 ORDER Entitlement to an initial rating higher than 20 percent prior to March 27, 2018 for hepatitis C is denied. REMANDED Entitlement to service connection for a respiratory condition due to radiation is remanded. FINDING OF FACT Prior to March 27, 2018, the Veteran’s hepatitis C does not reflect daily 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. CONCLUSION OF LAW Prior to March 27, 2018, the criteria for an initial rating higher than 20 percent for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7345. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran elected to participate in the Rapid Appeals Modernization Program (RAMP), selecting a Higher-Level Review and, subsequently, the Direct Docket option. The RO issued a rating decision in February 2019. As the Veteran elected to participate in the Direct Docket option, no evidence subsequent to the February 2019 rating decision shall be considered, to include VA treatment records submitted in April 2019 and the May 2019 VA examination regarding the Veteran’s alleged respiratory condition. Hepatitis C 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 Veteran’s hepatitis C is currently rated as 20 percent disabling prior to March 27, 2018. A February 2019 rating decision granted an increased rating of 100 percent for hepatitis C from March 27, 2018. Thus, the relevant appeal period is March 27, 2013 to March 26, 2018. The Veteran’s hepatitis C is rated under Diagnostic Code 7354. 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. 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. Here, in August and November 2013, VA nurse practitioner notes show the Veteran denied fatigue and did not report any loss of appetite or weight of more than 10 pounds in the previous six months. In correspondence dated November 2013, the Veteran reported that he was diagnosed with hepatitis C in 2002 and the treating physician informed him that his hepatitis C caused “rheumatoid factor,” a rare hepatitis C-related condition that causes joint pain. He also reported chronic fatigue, which affected his ability to work and engage in a romantic relationship with his wife. In December 2013 and March 2014, the Veteran submitted several articles regarding hepatitis C and related manifestations and symptoms, as well as veterans’ risk factors, including undergoing experimental hepatitis vaccination. In April 2014, the Veteran indicated he was not receiving treatment for his hepatitis C. See April 18, 2014 Election DRO Process. In July 2014, August 2014, September 2014, March 2015, and June 2015, the Veteran attributed his symptoms of fatigue, low energy, and daytime somnolence to insomnia and psychiatric conditions, specifically depression and PTSD. In September 2015, the Veteran denied fatigue. That same month, he reported no unintended weight loss during a surgery consultation. A June 2016 VA examination indicates the Veteran admitted he had not received any treatment for hepatitis C from 2006 until 2015. He complained of fatigue, frequent headaches, and joint pain but was not receiving any hepatitis C treatment as of the examination date. The examiner noted the Veteran’s symptoms as daily fatigue and arthralgia. No weight loss or incapacitating episodes were noted over the previous 12 months. In August 2016, the Veteran’s private physician, Dr. D.M., indicated the Veteran was diagnosed with hepatitis C in 2002, as he had “the signs and symptoms of chronic hepatitis,” for which Dr. D.M. did not describe. That same month, the Veteran reported daily joint pain, fatigue requiring him to lay down twice a week, and weight loss due to loss of appetite. In March 2018, Dr. D.M. wrote a second letter updating his August 2016 letter. Dr. D.M. described the Veteran’s current hepatitis C symptoms as constant and debilitating fatigue, weakness, malaise, arthralgia, and frequent rests for long periods of time after simple and routine activities. Dr. D.M. indicated the Veteran’s hepatitis C symptoms “had grown increasingly severe over time, they seem to have reached their current level of severity in 2013.” Dr. D.M. indicated the Veteran was currently on Plaquenil, which caused him dizziness, and was previously prescribed Harvoni in 2016, which is the cause of long term and persistent unnamed problems. Based on the above, the Board finds that an initial rating in excess of 20 percent is not warranted prior to March 27, 2018. Although the record shows daily fatigue and arthralgia, the evidence does not show daily malaise and anorexia, with minor weight loss and hepatomegaly; or incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.. See 38 C.F.R. § 4.114, Diagnostic Code 7354. It is important to note the Veteran has attributed fatigue to his psychiatric conditions and insomnia. Although Dr. D.M. indicated the Veteran’s prescription Plaquenil caused dizziness, there is no evidence regarding frequency of this symptom. In addition, although the Veteran has reported that his hepatitis C symptoms cause him to lay down, there is no evidence of incapacitating episodes having a total duration of at least four weeks, but less than six weeks that required bed rest and treatment by a physician at any time during the period on appeal. The Board notes the Veteran’s representative has argued that Dr. D.M.’s March 2018 letter indicates that the Veteran’s hepatitis C symptoms were “constant and debilitating” since 2013, and thus, warrant a 100 percent rating effective March 27, 2013. However, the Board gives Dr. D.M.’s 2018 letter little probative value, as Dr. D.M. does not provide a date in 2013 in which the Veteran’s symptoms were “constant.” In addition, Dr. D.M.’s report is outweighed by the medical evidence prior to May 27, 2018, including the June 2016 VA examination, which does not indicate that the Veteran exhibited near-constant or constant debilitating hepatitis C symptoms. Therefore, entitlement to an initial rating in excess of 20 percent for hepatitis C prior to March 27, 2018 is denied. REASONS FOR REMAND The Veteran alleges that he has a respiratory condition as a result of inhalation of radioactive dust during active duty. VA has conceded that the Veteran was exposed to radiation, as a result of his service with the 84th Engineering Battalion from August 1978 to February 1979. In addition, the Veteran has been diagnosed with mild obstructive sleep apnea and allergic rhinitis. See e.g., March 2015 and June 2015 VA treatment records. The Board finds that this evidence triggers the duty to assist, and the low threshold of McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006) has been met. A remand is required to determine the nature, extent and etiology of the Veteran’s claimed respiratory condition. The matters are REMANDED for the following action: 1. Determine whether any additional development is warranted for the service connection claim of a respiratory condition due to ionizing radiation exposure. See 38 C.F.R. § 3.311. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any claimed respiratory condition, to include allergic rhinitis and obstructive sleep apnea. The examiner must opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s respiratory condition(s) is causally related to active service, to include exposure to ionizing radiation therein. If the examiner finds that the Veteran does not have any respiratory condition, he/she must reconcile such a finding with the medical diagnoses contained within the claims file. The examiner is also put on notice that a lack of in-service diagnosis for, complaints of, or treatment for a respiratory condition are not sufficient to support a negative nexus opinion. The examiner must fully review and evaluate the claims file, including all lay statements, and attest to its review. All necessary tests and studies should be accomplished,   and all clinical findings should be reported in detail along with supportive rationale. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, 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.