Citation Nr: 19138931
Decision Date: 05/20/19	Archive Date: 05/20/19

DOCKET NO. 16-45 411
DATE:	May 20, 2019

ORDER

Entitlement to service connection for tinnitus is granted.  

Entitlement to an initial evaluation in excess of 50 percent for a mood disorder from November 29, 2010 is denied.  

Entitlement to an initial evaluation in excess of 40 percent for hepatitis C from February 28, 2006 to July 1, 2016 is denied.  

Entitlement to an initial evaluation in excess of 60 percent for hepatitis C from July 1, 2016 is granted.  

Entitlement to an initial evaluation in excess of 10 percent for gallstones and cirrhosis of the liver, from February 28, 2006 to June 16, 2014, is denied.  

Entitlement to an initial evaluation in excess of 30 percent for gallstones and cirrhosis of the liver from June 16, 2014 is denied.  

Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus from May 21, 2015 is denied.  

Entitlement to an initial compensable evaluation for erectile dysfunction from May 21, 2015 is denied.  

Entitlement to an effective date prior to May 21, 2015, for the grant of diabetes mellitus, is denied.  

Entitlement to an effective date prior to May 21, 2015, for the grant of erectile dysfunction, is denied.  

Entitlement to an effective date prior to November 29, 2010, for the grant of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), is denied.  

REMANDED

Entitlement to service connection for headaches is remanded.  

FINDINGS OF FACT

1. The Veteran’s tinnitus is related to his active service.

2. The Veteran’s mood disorder with is productive of occupational and social impairment with reduced reliability and productivity, but not productive of occupational and social impairment in most areas.  

3. Prior to July 1, 2016, the Veteran’s hepatitis C was manifested by fatigue, malaise, intermittent nausea, intermittent vomiting, intermittent anorexia and no weight loss.  

4. Since July 1, 2016, the Veteran’s hepatitis C was manifested by near-constant and debilitating symptoms of fatigue, malaise, nausea, and arthralgia; intermittent vomiting; and daily right upper quadrant pain.  

5. Prior to June 16, 2014, the Veteran’s gallstones and cirrhosis of the liver was manifested by fatigue, malaise, nausea, vomiting, anorexia, and pain, and not manifested by weight loss.  

6. Since June 16, 2014, the Veteran’s gallstones and cirrhosis of the liver are manifested by portal hypertension.  

7.  The Veteran’s diabetes mellitus requires a restricted diet and has required an oral hypoglycemic agent, but it has not required insulin or regulation of his activities.  

8. The Veteran’s erectile dysfunction is productive of loss of erectile power for which he receives special monthly compensation; however, there is no associated penile deformity.  

9. The Veteran filed an original compensation claim for service connection for diabetes mellitus which was received by VA on May 21, 2015; no earlier record constitutes a formal or informal claim for this benefit.

10. The Veteran’s erectile dysfunction was granted service connection as a result of his May 21, 2015 diabetes mellitus claim.  

11. A claim for TDIU was not raised prior to November 17, 2014.  

CONCLUSIONS OF LAW

1. Resolving all reasonable doubt in favor of the Veteran, tinnitus was incurred in active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018).  

2. The criteria for an initial evaluation of 50 percent for mood disorder have been approximated.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2018).  

3. The criteria for an initial evaluation in excess of 40 percent for hepatitis C prior to July 1, 2016 have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2018).

4. The criteria for an initial evaluation of 100 percent for hepatitis C since July 1, 2016 have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2018).

5. The criteria for an initial evaluation in excess of 10 percent for gallstones and cirrhosis of the liver prior to June 16, 2014 have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7315-7312 (2018).

6. The criteria for an initial evaluation in excess of 30 percent for gallstones and cirrhosis of the liver since June 16, 2014 have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7315-7312 (2018).

7.  The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913 (2018).

8. The criteria for a compensable evaluation for erectile dysfunction have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1-4.14, 4.115b, Diagnostic Code 7522 (2018).  

9. The criteria for an effective date earlier than May 21, 2015, for the grant of service connection for diabetes mellitus have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018).  

10. The criteria for an effective date earlier than May 21, 2015, for the grant of service connection for erectile dysfunction have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018).  

11. The criteria for entitlement to an effective date prior to November 29, 2010, for the grant of TDIU are not met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1970 to October 1974.  

This case comes before the Board of Veterans’ Appeals (Board) on appeal from August 2014, October 2014, February 2015, and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  

In August 2014, the RO effectuated the Board’s June 2014 grant of compensation under 38 U.S.C. § 1151 for a liver disability, assigning a 30 percent evaluation from February 28, 2006, and gallstones, assigning a 30 percent evaluation from June 16, 2014.  

In October 2014, the RO granted service connection for a mood disorder, assigned a 30 percent evaluation from November 29, 2010, and deferred entitlement to TDIU.  

In February 2015, the RO denied service connection for tinnitus and headaches, and denied entitlement to TDIU.  

In August 2016, the RO granted service connection for diabetes mellitus (originally denied in July 2015), assigned a 20 percent evaluation from May 21, 2015, and erectile dysfunction, assigned a noncompensable evaluation from May 21, 2015, increased the evaluations of hepatitis C from 30 percent to 50 percent effective July 1, 2016, and mood disorder from 30 percent to 50 percent effective November 29, 2010, granted entitlement to TDIU, and granted entitlement to special monthly compensation (SMC) based on loss of use of creative organ from May 21, 2015.  

In a November 2016 Notice of Disagreement, the Veteran contested the evaluation of SMC and the effective date.  However, this issue has not been addressed by the RO in a Statement of the Case.  As the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board therefore does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b).  

The Board notes the Veteran’s attorney wrote to VA in February 2018 that they would like to ask for the appeal to be advanced on the docket (AOD).  The Board denied the motion in March 2018.  However, in April 2018, the Veteran’s attorney requested AOD again.  Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown.  See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c).  Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay.  Any motion for advancement should be supported by pertinent documentation.  No evidence has been provided to VA to show sufficient cause to support the motion for AOD and the Veteran does not meet the requisite age.  Therefore, the motion remains denied.  

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board…to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

LAW AND ANALYSIS

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

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. As organic diseases of the nervous system are considered chronic diseases for VA compensation purposes, 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, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310.  

1. Service connection for Tinnitus

The Veteran has contended that he developed tinnitus as the result of noise exposure during service.  During a June 2016 VA examination, the Veteran reported onset of tinnitus during military service.  

The Vet’s DD-214 reflects he was awarded the rifle expert badge and pistol sharpshooter badge.  A September 2015 audiology record shows the Veteran complained of tinnitus and revealed working in the Marine Corps for four years in the helicopter air squadron and subsequently as a police officer for 11 years, denying a history of recreational noise exposure.  The Veteran reported the only time he fired a rifle or pistol without hearing protection was during service and now he has very loud ringing in both ears.  See January 2016 CAPRI record.  

Service treatment records show the Veteran had a normal audiogram at entry in October 1970 with essentially perfect hearing, and in August 1972 a threshold shift indicating worsening in hearing acuity.  The Veteran’s 1974 separation examination did not record audiogram results.  

The June 2016 VA examiner wrote that he could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation.  He noted he was unable to find complaints of tinnitus during military service but did not the audiogram threshold shift, and explained he was unsure whether the shift was permanent or temporary.  

The Veteran is competent to report in-service noise exposure and symptoms of tinnitus.  Layno v. Brown, 6 Vet. App. 465 91994); see also 38 C.F.R. § 3.159 (a)(2).  In fact, the Court has specifically held that tinnitus is a type of disorder capable of lay observation and description.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Furthermore, there is no reason to doubt the credibility of his lay assertions other than a lack of contemporaneous evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  

The Board does observe that the June 2016 VA examiner did not provide an opinion on etiology due to uncertainty.  Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim.  See Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010) (noting that the phrase, “without resort to mere speculation,” must not become a mantra that short circuits the careful consideration to which each claimant’s case is entitled).  

For the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran’s current tinnitus is related to his military service.  To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran’s favor.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, the Board concludes that service connection for tinnitus is warranted.  

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.  

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.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  

Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran’s disability is the primary concern, and past medical reports should not be given precedence over current medical findings.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  However, where, as here, the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).  

2. Evaluation in excess of 50 percent for Mood Disorder

The Veteran has contended that he is entitled to an increased rating for mood disorder.  He is currently assigned a 50 percent evaluation from November 29, 2010, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9435, Unspecified depressive disorder.  

Under Diagnostic Code 9435, a 50 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted when the psychiatric disorder results in 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.

A 100 percent rating is warranted when the psychiatric disorder results in 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.

The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation.  Id.  

In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”  It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”  

The Board notes that the regulations were recently revised to incorporate the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V) rather than the Fourth Edition (DSM-IV). These provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014.  The change does not apply to cases certified to the Board prior to that date.  In this case, the Veteran’s claim was certified to the Board after August 4, 2014; therefore, the regulations pertaining to the DSM-IV are for application.  

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score.  According to the DSM-IV, GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.”  There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner’s assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran’s disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).  

As noted above, the Veteran is currently assigned a 50 percent initial evaluation. 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran’s disability picture, to include the severity, frequency, and duration of his symptoms, as well as the resulting impairment of social and occupational functioning, is consistent with a 50 percent rating.  

On two occasions, the Veteran was scheduled for a VA examination to evaluate the severity of his psychiatric symptoms.  However, the Veteran has not attended the examinations and has not offered good cause or requested a new examination.  

The record reflects the Veteran maintained a history of symptoms that predominantly included depression, insomnia, agitation, and feeling anxious.  He has also endorsed passive suicidal ideation.  These symptoms support a 50 percent evaluation.  

The record does not demonstrate that the Veteran’s overall disability picture is consistent with a 70 percent rating or higher.  To the extent these symptoms may be shown or argued, the Board emphasizes that the Veteran’s disorder has not been shown to be productive of occupational and social impairment, with deficiencies in most areas, or total occupational and social impairment.  

A 70 percent rating is warranted when the psychiatric disorder results in 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.  

In this case, the record does not demonstrate that the Veteran’s overall disability picture is consistent with a 70 percent rating or higher, to include consideration of the Veteran’s lay statements and medical treatment records.  

As to occupational impairment, the Veteran is entitled to TDIU due to the effects from his hepatitis.  SSA records reflect that the Veteran was disabled from 1999 due to the effects of carpel tunnel syndrome, hepatitis C, and cervical and lumbar spine pain.  Ultimately, the evidence does not show occupational impairment due to psychiatric symptoms.  

As to social impairment, the Board notes that the Veteran has been divorced since 1999.  He has continued to struggle with depression and insomnia.  See February 2016 psychiatry note.  

The Board notes that the Veteran endorsed suicidal ideation previously.  See October 2011 CAPRI record.  However, especially since acquiring his service dog, the Veteran’s reports of suicidal ideation have fortunately waned.  See October 2015 CAPRI record.  

To the extent any of the symptoms of a 70 percent rating may be shown or argued, the Board again emphasizes that the Veteran’s mood disorder has not been shown to be productive of occupational and social impairment in most areas; or total occupational and social impairment to warrant a higher rating.  There is no also indication that he has had any of the other symptoms of the 70 or 100 percent criteria, such as obsessional rituals; illogical, obscure, or irrelevant speech; neglect of his personal appearance and hygiene; homicidal ideation; or disorientation to time or place.  

After considering the evidence of record, the Board finds that the Veteran’s symptoms more closely approximate the criteria for a 50 percent disability rating for the appeal period.  Overall, the Veteran has not demonstrated a level of impairment consistent with the 70 percent criteria, nor have the Veteran’s symptoms caused total occupational and social functioning referenced by the 100 percent evaluation criteria.  Mauerhan, supra, Vazquez-Claudio, supra.  The criteria for the next higher rating have not been met or approximated.  See 38 C.F.R. § 4.130, Diagnostic Code 9435.  Therefore, the Board finds that the Veteran’s mood disorder warrants a 50 percent rating, and no higher, for the appeal period.  

3. Evaluation in excess of 40 percent for Hepatitis C from February 28, 2006 to July 1, 2016 

In this case, the Veteran has contended that he is entitled to initial evaluation in excess of 40 percent for Hepatitis C from February 28, 2006 to July 1, 2016.  

The Veteran is currently assigned a 40 percent evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354, and receives compensation at a 30 percent level.  

Under Diagnostic Code 7354, with serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection, a 40 percent disability rating is assigned 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.  A 60 percent rating is assigned for 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 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).  

Medical treatment records reveal at an October 2010 VA examination, the Veteran was experiencing near constant fatigue, near constant malaise, intermittent nausea, intermittent vomiting, intermittent anorexia, and near constant right upper quadrant pain, and no weight loss, and in fact was able to gain weight since 1998.  He had no frequency of incapacitating episodes during the previous 12 months noted.  

In private letter submitted to VA in November 2014, Doctor H.S. stated that the Veteran was interviewed in October 2014 and his symptoms had progressed since initial diagnosis, the most limiting symptoms being fatigue and nausea.  

In private letter dated October 2016 submitted to VA, Doctor K.D.D. provided an opinion on the severity of the Veteran’s condition, including during the period of February 28, 2006 to July 1, 2016.  He stated it was safe to opine that the Veteran’s disease had progressed to the point of rendering him unable to work as of March 2006 and that he would have been suffering from fatigue, malaise, nausea, vomiting, and chronic pain on a fairly consistent basis, and that by the time of the July 1, 2016 examination, his symptoms would have grown even worse.  

As noted above, a 40 percent disability rating is assigned 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.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 40 percent evaluation from February 28, 2006 to July 1, 2016.  In this case, the Veteran experienced fatigue, malaise, intermittent nausea, intermittent vomiting, intermittent anorexia and no weight loss.  The record does not demonstrate that the Veteran’s hepatitis C symptoms were productive of substantial weight loss or malnutrition and hepatomegaly, or incapacitating episodes for at least six weeks during the past 12-months to warrant a 60 percent evaluation between February 28, 2006 and July 1, 2016.  Therefore, after consideration of all the evidence of record, the Board finds that an initial evaluation in excess of 40 percent is not warranted.  See 38 C.F.R. § 4.114, Diagnostic Code 7354.  

For any resulting impairment caused by the Veteran’s hepatitis to the liver, the Board notes a separate evaluation has been subject to compensation from February 28, 2006.  See 38 C.F.R. § 4.118.  

Accordingly, the Board finds that the Veteran’s hepatitis symptoms more closely approximate the criteria for a 40 percent disability rating for this appeal period.  The criteria for the next higher rating of 60 percent have not been met or approximated.  See 38 C.F.R. § 4.114, Diagnostic Code 7354.  

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran’s hepatitis C was so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).  

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant’s service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required.  Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, VA must determine whether the claimant’s exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1)) as “governing norms” (which include marked interference with employment and frequent periods of hospitalization).  

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hepatitis is inadequate from February 28, 2006 to July 1, 2016.  A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, which include near constant fatigue, near constant malaise, intermittent nausea, intermittent vomiting, intermittent anorexia, and near constant right upper quadrant pain.  As discussed above, such symptoms are contemplated by the schedular criteria set forth in the applicable diagnostic code.  

Thus, it cannot be said that the available schedular evaluations for this disability are inadequate.  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran’s disability is not productive of such manifestations.  

The Board further notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all of the service-connected disabilities experienced.  However, the Court has also held that “[a]lthough the Board must consider any combined effects resulting from all of a claimant’s service-connected disabilities insofar as they impact the disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status , just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal.”  Yancy v. McDonald, 27 Vet. App. at 496.  In this case, the Veteran has not asserted, and the evidence of record does not show or suggest, any combined effect or collective impact from multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  See Yancy, 27 Vet. App. at 495 (holding that “[n]othing in Johnson changed the long-standing principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record”).  Thus, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple disabilities.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran’s service-connected hepatitis C under the provisions of 38 C.F.R. § 3.321(b)(1) have also not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).  

4. Evaluation in excess of 60 percent for Hepatitis C from July 1, 2016 to the present 

In this case, the Veteran has contended that he is entitled to initial evaluation in excess of 60 percent for Hepatitis C from July 1, 2016.  

The Veteran is currently assigned a 60 percent evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7354, and receives compensation at a 50 percent level.  

Under Diagnostic Code 7354, with serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection, a 60 percent rating is assigned for 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 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).  

The Veteran appealed his evaluation in a November 2016 VA Form 9, formal appeal to the Board.

Medical treatment records reveal ongoing treatment for the Veteran’s hepatitis disability.  

A July 2016 VA examiner found that the Veteran suffered from near constant and debilitating symptoms of fatigue, malaise, nausea, and arthralgia, intermittent vomiting, and daily right upper quadrant pain.  It was recorded that the Veteran had incapacitating episodes of six weeks or more in the past 12 months.  

In an October 2016 letter submitted to VA, the Veteran’s private doctor, K.D.D., M.D., wrote that due to the Veteran’s hepatitis severity by March 2006, the Veteran would have been missing work more than three days per month, would not have been able to focus, would have committed or have been nauseated frequently, and too tired to be productive in any type of job.  He also wrote that by the time of the July 2016 VA examination, the Veteran’s symptoms would have progressed and would have grown even worse.  

As noted above, a 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 100 percent evaluation since July 1, 2016.  In this case, the Veteran has continued to suffer from symptoms of fatigue, malaise, nausea, arthralgia, vomiting, and right upper quadrant pain, and the fatigue, malaise, and nausea are near-constant and debilitating.  Therefore, the Board concludes that he is entitled to an initial 100 percent evaluation for this appeal period.  

For any additional resulting impairment caused by sequelae of the Veteran’s hepatitis, the Board notes a separate evaluation for gallstones and cirrhosis of the liver has already been granted.  See 38 C.F.R. § 4.118.  

Based on the foregoing, the Board finds that the requirements for maximum evaluation for the Veteran’s service-connected hepatitis C have been met.  Accordingly, the Board finds that the Veteran’s hepatitis symptoms most closely approximate the criteria for a 100 percent disability rating from July 1, 2016.  

5. Evaluation in excess of 10 percent for Gallstones & Cirrhosis of the Liver from February 28, 2006 to June 16, 2014

In this case, the Veteran has contended that he is entitled to initial evaluation in excess of 10 percent for gallstones and cirrhosis of the liver from February 28, 2006 to June 16, 2014.  

The Veteran is currently assigned a 10 percent evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7315-7312, granted under 38 U.S.C. § 1151.  Hyphenated diagnostic codes including a diagnostic code ending in the digits “99” are used when there is no specifically applicable diagnostic code and the disability is rated by analogy.  38 C.F.R. § 4.27.  

Diagnostic Code 7315, “cholelithiasis, chronic,” is to be rated as “cholecystitis, chronic” found under Diagnostic Code 7314.  

Under Diagnostic Code 7314, a 10 percent disability rating is assigned for moderate cholecystitis; gall bladder dyspepsia, confirmed by X-ray technique, and with infrequent attacks (not over two or three a year) of gall bladder colic, with or without jaundice.  A 30 percent rating, the highest available evaluation, is assigned for severe cholecystitis; frequent attacks of gall bladder colic.  

Under Diagnostic Code 7312, a 10 percent disability rating is assigned for symptoms such as weakness, anorexia, abdominal pain, and malaise.  A 30 percent rating is assigned for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss.  A 50 percent rating is assigned for a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis).  A 70 percent rating is assigned for a 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.  A 100 percent rating is assigned for 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).  

Historically, the Veteran has a history of hepatitis C, compensated under 38 U.S.C. § 1151.  Due to sequelae resulting in further impairment caused by the Veteran’s hepatitis, a separate evaluation for gallstones and cirrhosis of the liver was granted effective February 28, 2006.  See 38 C.F.R. § 4.118.  

Prior to June 16, 2014, medical treatment records reveal treatment for gallstones following drug-induced hepatitis C due to work as a police officer.  A December 2009 ultrasound revealed cholelithiasis with no evidence of wall thickening or adjacent inflammation and a normal common bile duct.  The kidney measurements were normal while the spleen was enlarged.  A January 2011 CT scan showed mild hepatomegaly and cholelithiasis with no evidence of inflammation.  

In an October 2010 VA examination, the examiner wrote that the Veteran’s liver function had been stable.  Symptoms included fatigue, malaise, nausea, vomiting, anorexia, and right upper, right lower, and left lower quadrant pain.  The examiner diagnosed the Veteran with chronic hepatitis C, liver disorder, and cholelithiasis (gallstones) with no history of cholecystitis.  It was also noted that the Veteran gained about 15 pounds since 1998.  

In an October 2014 private letter submitted to VA, Doctor H.S. wrote that in March 2006 it was noted that the Veteran’s previous imaging was suggestive of diffuse hepatocellular disease.  As to that time frame, the doctor wrote that around March 2006, the Veteran would have been too disabled due to the effects of hepatitis C and his liver condition to work because of the symptoms of inflammation causing fatigue and nausea.  

As the record does not show the Veteran was diagnosed with cholecystitis, Diagnostic Code 7312 is most appropriate for application.  As noted above, a 10 percent evaluation is warranted for symptoms such as weakness, anorexia, abdominal pain, and malaise.  A 30 percent rating is assigned for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 10 percent evaluation from February 28, 2006 to June 16, 2014.  In this case, the Veteran has suffered from symptoms such as abdominal pain and malaise.  Therefore, the Board concludes that he is entitled an initial 10 percent evaluation he currently receives for appeal period for his gallstones and cirrhosis of the liver. 

The record does not demonstrate that the Veteran’s gallstones and cirrhosis of the liver symptoms between February 28, 2006 and June 16, 2014 were consistent with a higher rating during the appeal period.  There is no evidence of at least minor weight loss with portal hypertension and splenomegaly.  Therefore, after consideration of all the evidence of record, the Board finds that an initial evaluation in excess of 10 percent is not warranted.  See 38 C.F.R. § 4.114, Diagnostic Code 7315-7312.  

Accordingly, the Board finds that the Veteran’s gallstones and cirrhosis of the liver symptoms more closely approximate the criteria for a 10 percent disability rating for this appeal period.  The criteria for the next higher rating have not been met or approximated.  See 38 C.F.R. § 4.114, Diagnostic Code 7315-7312.  

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran’s gallstones and cirrhosis of the liver was so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).  

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant’s service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required.  Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, VA must determine whether the claimant’s exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1)) as “governing norms” (which include marked interference with employment and frequent periods of hospitalization).  

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected gallstones and cirrhosis of the liver is inadequate from February 28, 2006 to June 16, 2014.  A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology.  As discussed above, such symptoms are contemplated by the schedular criteria set forth in the applicable diagnostic code.  

Thus, it cannot be said that the available schedular evaluations for this disability are inadequate.  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran’s disability is not productive of such manifestations.  

The Board further notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all of the service-connected disabilities experienced.  However, the Court has also held that “[a]lthough the Board must consider any combined effects resulting from all of a claimant’s service-connected disabilities insofar as they impact the disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status , just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal.”  Yancy v. McDonald, 27 Vet. App. at 496.  In this case, the Veteran has not asserted, and the evidence of record does not show or suggest, any combined effect or collective impact from multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  See Yancy, 27 Vet. App. at 495 (holding that “[n]othing in Johnson changed the long-standing principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record”).  Thus, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple disabilities.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran’s service-connected gallstones and cirrhosis of the liver under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).  

6. Evaluation in excess of 30 percent for Gallstones & Cirrhosis of the Liver from June 16, 2014 to the present

In this case, the Veteran has contended that he is entitled to initial evaluation in excess of 30 percent for gallstones and cirrhosis of the liver from June 16, 2014 to the present.  

The Veteran is currently assigned a 30 percent evaluation, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7315-7312, granted under 38 U.S.C. § 1151.  Hyphenated diagnostic codes including a diagnostic code ending in the digits “99” are used when there is no specifically applicable diagnostic code and the disability is rated by analogy.  38 C.F.R. § 4.27.  

Diagnostic Code 7315, “cholelithiasis, chronic,” is to be rated as “cholecystitis, chronic” found under Diagnostic Code 7314.  

Under Diagnostic Code 7314, a 10 percent disability rating is assigned for moderate cholecystitis; gall bladder dyspepsia, confirmed by X-ray technique, and with infrequent attacks (not over two or three a year) of gall bladder colic, with or without jaundice.  A 30 percent rating, the highest available evaluation, is assigned for severe cholecystitis; frequent attacks of gall bladder colic.  

Under Diagnostic Code 7312, a 10 percent disability rating is assigned for symptoms such as weakness, anorexia, abdominal pain, and malaise.  A 30 percent rating is assigned for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss.  A 50 percent rating is assigned for a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis).  A 70 percent rating is assigned for a 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.  A 100 percent rating is assigned for 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).  

Historically, the Veteran has a history of hepatitis C, compensated under 38 U.S.C. § 1151.  Due to sequelae resulting in further impairment caused by the Veteran’s hepatitis, a separate evaluation for gallstones and cirrhosis of the liver was granted effective February 28, 2006.  See 38 C.F.R. § 4.118.  

Considering the evidence from June 16, 2014, medical treatment records reveal chronic liver disease.  See February 2016 CAPRI record.  A CT Scan showed fatty liver.    

In an October 2014 private letter submitted to VA, Doctor H.S. wrote that he interviewed the Veteran in October 2014 and the Veteran stated his symptoms have progressed since he was diagnosed, the most limiting symptoms continuing to be fatigue and nausea.  

In a July 2016 VA examination, the examiner wrote that the Veteran’s liver condition was diagnosed as hepatitis C and liver cirrhosis with portal hypertension and he has gallstones subsequent to contracting hepatitis.  

In an October 2016 private letter submitted to VA, Doctor K.D.D. wrote that the Veteran’s hepatitis symptoms would have rendered him unemployable by at least March 2006, that by October 2010 symptoms of fatigue, malaise, nausea, vomiting, and chronic pain occurred on a fairly consistent basis, and by the time of July 1, 2016, symptoms would have grown even worse.  

As the record does not show the Veteran was diagnosed with cholecystitis, Diagnostic Code 7312 is most appropriate for application.  As noted above, a 30 percent rating is assigned for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss.  A 50 percent rating is assigned for a history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis).  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 30 percent from June 16, 2014.  In this case, the Veteran has suffered from symptoms such as fatigue, malaise, nausea, vomiting, and chronic pain, including from liver cirrhosis with portal hypertension.  The record does not demonstrate that the Veteran’s gallstones and cirrhosis of the liver symptoms from June 16, 2014 to the present were consistent with a higher rating during the appeal period.  There is no evidence of ascietes, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy.  Therefore, after consideration of all the evidence of record, the Board finds that an initial evaluation in excess of 30 percent is not warranted.  See 38 C.F.R. § 4.114, Diagnostic Code 7315-7312.  

Accordingly, the Board finds that the Veteran’s gallstones and cirrhosis of the liver symptoms more closely approximate the criteria for the 30 percent disability rating for this appeal period.  The criteria for the next higher rating have not been met or approximated.  See 38 C.F.R. § 4.114, Diagnostic Code 7315-7312.  

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran’s gallstones and cirrhosis of the liver was so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).  

The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant’s service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required.  Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, VA must determine whether the claimant’s exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1)) as “governing norms” (which include marked interference with employment and frequent periods of hospitalization).  

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected gallstones and cirrhosis of the liver is inadequate from June 16, 2014.  A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology.  As discussed above, such symptoms are contemplated by the schedular criteria set forth in the applicable diagnostic code.  

Thus, it cannot be said that the available schedular evaluations for this disability are inadequate.  As discussed above, there are higher ratings available under the diagnostic code, but the Veteran’s disability is not productive of such manifestations.  

The Board further notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all of the service-connected disabilities experienced.  However, the Court has also held that “[a]lthough the Board must consider any combined effects resulting from all of a claimant’s service-connected disabilities insofar as they impact the disability picture of the disabilities on appeal, it lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status , just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal.”  Yancy v. McDonald, 27 Vet. App. at 496.  In this case, the Veteran has not asserted, and the evidence of record does not show or suggest, any combined effect or collective impact from multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  See Yancy, 27 Vet. App. at 495 (holding that “[n]othing in Johnson changed the long-standing principle that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record”).  Thus, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple disabilities.  

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran’s service-connected gallstones and cirrhosis of the liver under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).  

7. Evaluation in excess of 20 percent for Diabetes Mellitus

The Veteran is currently assigned a 20 percent evaluation for his service-connected diabetes mellitus pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913.  

Under Diagnostic Code 7913, a 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet.  A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  A 60 percent evaluation is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  A 100 percent evaluation is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.  

In order to demonstrate a regulation of activities, “medical evidence” is required to show that both occupational and recreational activities have been restricted.  Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007).  The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.”  Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent evaluation)).  

Successive rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component.  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).  For example, Diagnostic Code 7913 for diabetes mellitus has successive rating criteria because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities, and so forth.  Camacho, 21 Vet. App. at 366.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an initial evaluation in excess of 20 percent is not warranted for diabetes mellitus.  

A July 2016 VA examination shows the Veteran’s March 2015 diagnosis of diabetes mellitus type II.  The treatment recorded is that diabetes mellitus is managed by restricted diet and prescribed oral hypoglycemic agent(s).  The Veteran does not require regulation of activities as part of medical management of diabetes mellitus.  While it was found that he has no resulting peripheral neuropathy, he does erectile dysfunction as a complication of his diabetes mellitus.  The July 2016 VA examiner opined that the Veteran’s diabetes mellitus and complications did not impact his ability to work.  

Based on review of the record, the Board acknowledges the Veteran’s diabetes mellitus requires a restricted diet and has required an oral hypoglycemic agent; however, it has not required insulin or regulation of his activities.  

In summary, the Board finds that the Veteran is not required to regulate his activities due to diabetes mellitus as outlined in Comancho, a requirement for assignment of a 40 percent evaluation.  The record also does not indicate that the Veteran’s diabetes mellitus requires the use of insulin.  

The Board notes that the Veteran is separately service-connected for erectile dysfunction as a diabetic complication.  To the extent that there have been noncompensable diabetic complications during the appeal period, such complications are part of the diabetic process under Diagnostic Code 7913 and would not change the 20 percent evaluation currently assigned.  See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).  

Based on the foregoing, the Board finds that the weight of the evidence is against an initial evaluation in excess of 20 percent for diabetes mellitus, type II.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49 (1990).  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  

8. Compensable evaluation for Erectile Dysfunction

The Veteran has been assigned a noncompensable evaluation by analogy under 38 C.F.R. § 4.115b, Diagnostic Code 7599-7522.  Under Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with loss of erectile power.  

During a July 2016 VA examination, it was found that the Veteran had erectile dysfunction as a complication of diabetes mellitus.  No penile deformity was noted as the Veteran declined a physical examination.  It was noted that there is no renal dysfunction and not voiding dysfunction.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected erectile dysfunction.  The evidence of record indicates that the Veteran has loss of erectile power, but does not indicate that he has penile deformity.  Therefore, the criteria for an evaluation of 20 percent are not more nearly approximated.  

The Board also observes that the Veteran is in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114(k) based on the loss of use of a creative organ for his erectile dysfunction.  Thus, the Veteran is compensated for his erectile dysfunction and any associated symptoms.  Therefore, the Board finds that the weight of the evidence is against a compensable evaluation for erectile dysfunction.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49 (1990).  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  

  

Effective Date

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application.  38 U.S.C. § 5110(a).  The implementing regulation clarifies this to mean, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  

The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date.  Otherwise, the effective date will be the date of receipt of the claim.  38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (“increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998).  

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form.  The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats.  The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155).  The amendments apply only to claims filed on or after March 24, 2015.  

Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).  

TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply.  See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). 

All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.16(b).  

A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b).  

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment.  See 38 C.F.R. §§ 3.340, 3.341, 4.16.  The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992).  

Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  See Van Hoose, 4 Vet. App. at 363.  

9. Earlier effective date for Diabetes Mellitus 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date earlier than May 21, 2015, for the grant of service connection for diabetes mellitus is not warranted.

The Veteran contested the effective date assigned for the grant of service connection for diabetes mellitus.  

Regarding the date of claim, the record does not contain any earlier communication indicating an intent to file a claim for service connection for diabetes mellitus.  The claim was also not received within one year after separation from service as defined in 38 C.F.R. § 3.400(b)(2) above.  VA is obligated to consider all possible bases for compensation; however, this does not mean that it is required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”); see also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  

Regarding the date of entitlement, even assuming that the evidence shows that the Veteran met the requirements for service connection for diabetes mellitus prior to May 21, 2015, the effective date for an award based on an original claim (i.e., the first claim filed for that benefit) cannot be earlier than the date of VA’s receipt of the claim.  

Based on the foregoing, the Board concludes that a formal or informal claim for service connection diabetes mellitus was not received prior to the claim submitted on May 21, 2015, the effective date currently assigned.  As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49, 53.  

10. Earlier effective date for Erectile Dysfunction

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date earlier than May 21, 2015, for the grant of service connection for erectile dysfunction is not warranted.

The Veteran contested the effective date assigned for the grant of service connection for erectile dysfunction.  

Regarding an inferred date of claim, the record does not contain any earlier communication than the May 21, 2015 claim for service connection for diabetes mellitus.  Based on the May 21, 2015 claim, the Veteran was afforded a VA examination in July 2016, at which point it was determined he had erectile dysfunction due to his diabetes mellitus; both disabilities were service connected in the August 2016 rating decision.  

A claim was also not received within one year after separation from service as defined in 38 C.F.R. § 3.400(b)(2) above.  VA is obligated to consider all possible bases for compensation; however, this does not mean that it is required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”); see also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  

Regarding the date of entitlement, even assuming that the evidence shows that the Veteran met the requirements for service connection for erectile dysfunction prior to May 21, 2015, the effective date for an award based on an original claim (i.e., the first claim filed for that benefit) cannot be earlier than the date of VA’s receipt of the claim.  

Based on the foregoing, the Board concludes that a formal or informal claim for service connection erectile dysfunction was not received prior to the claim submitted on May 21, 2015, the effective date currently assigned.  As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49, 53.  

11. Earlier Effective Date for TDIU

In considering the evidence of record under the law and regulations as set forth above, the Board concludes that the evidence does not show that the Veteran is entitled to an effective date prior to November 29, 2010, for the grant of TDIU.

As noted above, the effective date for TDIU would be the later of the date of receipt of claim or the date entitlement arose.  See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2)(ii).  

The first date that a claim could be inferred for TDIU was November 17, 2014, when the Veteran submitted a private medical opinion addressing the effects of the Veteran’s service-connected disabilities.  He was denied entitlement to TDIU in a February 2015 rating decision because it was found his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation.  He was later granted TDIU in an August 2016 rating decision, effective from November 29, 2010, which was the date on which he was first unemployed.  

The Veteran has contended that he should be entitled to TDIU earlier because evidence supports his contention that he was unable to work due to service-connected disabilities prior to that time.  Specifically, he submitted private opinions from two doctors dated October 2014 and October 2016, finding the Veteran was unable to work due to his chronic hepatitis C and residuals from at least March 2006.

After reviewing the record, it is clear that there was no application for TDIU received prior to November 29, 2010.  In addition, the evidence of record contains no other communication from the Veteran or his representative indicating an intent to file a claim for TDIU prior to November 29, 2010, the effective date assigned.  38 C.F.R. §§ 3.1(p), 3.155(a).  

The Board acknowledges the Veteran’s assertions that his physicians have opined that he would not have been able to work as of March 2006, and therefore, entitlement arose in 2006.  However, the legal criteria governing effective dates establishes that the effective date for TDIU is the later of the date of claim or the date entitlement arose.  

Thus, after reviewing the evidence of record, the earliest date that the issue of TDIU was raised by the record was May 30, 2012, when the RO received Social Security Administration (SSA) records.  

After reviewing the evidence of record, the Board finds that the Veteran is not entitled to an effective date earlier than November 29, 2010, for the grant of TDIU.  Even if entitlement was found to have arose on March 1, 2006, the earliest date that evidence was received by VA indicating the Veteran could not work due to service-connected disabilities was May 30, 2012, which is the later date, and later than the effective date already assigned.  Accordingly, the claim for an earlier effective date for the grant of TDIU is denied.  

REASONS FOR REMAND

12. Service connection for Headaches is remanded.

The Veteran claimed he has a headaches disorder caused by service.  Service treatment records show he injured his head in a fall and was taken by ambulance to be treated for laceration to his forehead in October 1972.  The Veteran said he has had headaches since that time which have increased in severity.  See January 2012 CAPRI record; see also July 2016 C&P Exam documents.  

The Veteran was diagnosed with traumatic brain injury (TBI) an given a July 2016 opinion by a VA chief neurology doctor that the Veteran’s 1972 fall caused a concussion.  Despite the TBI from service and the Veteran’s assertion that he has had tension headaches since that time which have evolved into migraines, another July 2016 VA examiner found that the Veteran’s headaches are not attributable to the TBI.  However, no rationale was given as to why the headaches were less likely than not caused by service and how the conclusion was formulated that current headaches did not result from the in-service TBI.  Therefore, a new medical opinion is needed.  

The matter is REMANDED for the following action:

1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his headaches on appeal.  

After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.  

The AOJ should also obtain any outstanding VA medical records.  

2.  After the above development has been completed, the Veteran should be afforded a VA examination to the nature and etiology of any headache disorder that may be present.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.  

The examiner is requested to review all pertinent records associated with the claims file, including service treatment records, post-service medical records, July 2016 VA examinations, and lay statements and assertions.  

The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has headaches that manifested in or are otherwise related to his military service.

 (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)

(Continued on the next page)

 

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.

 

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	B. Kuczynski

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.