Citation Nr: 20046563 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 09-37 173A DATE: July 13, 2020 ORDER The claim for an increased evaluation for hepatitis C, initially rated 10 percent from March 30, 1973 to November 27, 2016 and at 40 percent from November 28, 2016 onward, is denied. The claim for a total disability rating based on individual unemployability (TDIU) as due to service-connected disability is denied. FINDINGS OF FACT 1. From March 1973 to November 2016, the condition of hepatitis C did not involve minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. Additionally, from July 2, 2001 onwards that condition did not include the presence of daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. 2. Since November 28, 2016 the Veteran’s condition was not manifested by daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. 3. The Veteran is not rendered incapable of securing and maintaining substantially gainful employment as the consequence of service-connected disability. CONCLUSIONS OF LAW 1. The criteria are not met for an increased evaluation for hepatitis C, initially rated 10 percent from March 30, 1973 to November 27, 2016 and at 40 percent from November 28, 2016 onward. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Codes 7345 (prior to July 1, 2001), and 7354 (2019). 2. The criteria are not met for a TDIU. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.15, 4.16(b) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from March 1970 to March 1973. The Board will address the relevant procedural background at the outset. There was a hearing held in November 2012 before the undersigned Veterans Law Judge (VLJ) at the Board’s Central Office in Washington, D.C. Thereafter, the Board issued a March 2014 remand, which requested additional development of the claims on appeal. The Board then referred to the Regional Office (RO) (as the Agency of Original Jurisdiction (AOJ)) for adjudication the claim of earlier effective date for service connection for hepatitis C based on Clear and Unmistakable Error (CUE) within a July 1973 RO rating decision. In the March 2014 remand, the Board directed the AOJ to provide the Veteran with notice on how to substantiate a TDIU claim, to obtain records, to provide a VA examination, and to refer the Veteran’s TDIU claim to the Director of the Compensation Service for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b). Notice regarding TDIU was provided to the Veteran by a March 2014 letter. Additional records were obtained. He underwent a VA examination for hepatitis in December 2016 and for liver conditions in May 2017. The examinations were adequate because they described the severity of the Veteran’s hepatitis C in detail sufficient for the Board to make a well-informed decision. There was substantial compliance with these March 2014 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). By an April 2017 rating decision, the RO increased to 40 percent the evaluation for hepatitis C, effective from November 28, 2016. In May 2018, the case was again remanded, for purposes of the adjudication of the CUE claim which had not yet taken place at the AOJ level. Additionally, the Board again directed the AOJ to refer the case to the Director of the Compensation Service for consideration of an extraschedular TDIU. In January 2020, the Director of the Compensation Service provided a memorandum regarding extraschedular TDIU. There was substantial compliance with the May 2018 remand directives. Id. Thereafter, by a June 2019 rating decision, the AOJ adjudicated the matter, finding CUE in the original failure to establish service connection for residuals of infectious hepatitis. Following this determination the AOJ then granted service connection for residuals of infectious hepatitis, with an evaluation of 10 percent, effective March 30, 1973, which is the day after the Veteran separated from service. The 40 percent evaluation thereafter from November 28, 2016 onwards continued in effect. Also, the June 2019 rating decision continued the denial of the claim for TDIU. The case has since returned to the Board for further appellate review. 1. The claim for an increased evaluation for hepatitis C, initially rated at 10 percent effective from March 30, 1973, at 40 percent from November 28, 2016 onward is denied. The Veteran and his attorney have made generic assertions regarding the duty to notify and assist. For example, in the April 2020 VA Form 9, the Veteran’s attorney stated that they took exception and preserved for appeal all errors including “failure to discharge the duty to assist.” VA’s duty to notify was satisfied by February 2008 and March 2014 letters. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In his October 2017 VA Form 9, the Veteran asserted that VA failed to provide an adequate examination but did not set forth deficiencies in the examinations that were provided. The November 2016 and May 2017 hepatitis examination reports show that the Veteran was examined and that the claims file was reviewed. The Veteran described his symptoms to the examiner at both examinations. The examination reports addressed the severity of the Veteran’s hepatitis C in detail sufficient for the Board to adjudicate the claim. The examinations are adequate. There is no indication of any additional relevant evidence that has not already been obtained. Accordingly, the Board will proceed to the merits of the case. Generally, under VA law, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Veteran’s hepatitis C most recently has been evaluated in accordance with the provisions of 38 C.F.R. § 4.114, Diagnostic Code 7354. Under Diagnostic Code 7354, a noncompensable rating is assigned for asymptomatic HCV. A 10 percent rating requires intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12- month period. A 20 percent rating requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, 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 two weeks, but less than four weeks, during the past 12-month period. A 40 percent rating requires 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 requires 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 requires serologic evidence of HCV infection and the following signs and symptoms due to the HCV infection: near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). According to Note (1) in this diagnostic code, states to evaluate sequelae (i.e., residuals), such as cirrhosis or malignancy of the liver, under an appropriate diagnostic code, but do not use the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354 and under a diagnostic code for sequelae. (This would violate VA’s anti-pyramiding regulation. See 38 C.F.R. § 4.14). Note (2) provides that for purposes of evaluating conditions under DC 7354, an “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. In this particular case, as indicated the Veteran is in receipt of the following level of service-connected compensation currently, that of a 40 percent rating. That being the present compensation, certainly this case has a long-term history of many decades for rating purposes, given that there is now a March 30, 1973 effective date of service connection that is applicable. From March 30, 1973 up until November 27, 2016 there was a 10 percent initial rating in effect. During the course of the appeal period, the regulations pertaining to rating disabilities of the digestive system were amended, effective July 2, 2001. The Board is required to consider the claim in light of both the former and revised schedular rating criteria. VA’s Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. However, the Veteran does get the benefit of having both the old rating criteria and the new criteria considered for the period after the change was made. See VAOPGCPREC 3-00. Prior to the regulatory change effective July 2, 2001, hepatitis C was evaluated under the general provisions for infectious hepatitis under 38 C.F.R. § 4.114, Diagnostic Code 7345. Under Diagnostic Code 7345, a noncompensable (0 percent) rating applied to a healed, non-symptomatic condition. A 10 percent rating was assigned for demonstrable liver damage with mild gastrointestinal disturbance. A 30 percent evaluation was assignable for minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. A 60 percent evaluation was assigned for moderate liver damage with disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. A maximum 100 percent evaluation was assigned for marked liver damage manifested by liver function test and marked gastrointestinal symptoms; or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. 38 C.F.R. § 4.114, Diagnostic Code 7345 (in effect prior to July 2, 2001). Having reviewed the foregoing, the Board finds on complete review of the record that the Veteran’s service-connected hepatitis C does not reach the level of overall severity consistent with the requirements of increase. The Veteran had a few episodic flare-ups at times, if limited in duration and scope of symptomatology, mostly that on or around year 2006. The determination of disability rating is intended to reflect a longitudinal case study. See 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.”); see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board proceeds in the analysis therefore applying the proper rating standard and with the preceding considerations in mind. The assertion by the Veteran’s attorney is that at minimum the Veteran had the criteria met for 40 percent going back to 1973, and likewise for a higher 60 percent rating from 2016 onwards. The vast majority of the evidence of record is from year 2006 to the present, with the Veteran having forwarded a series of private clinical evaluations from various sources and that were intended to supplement the existing VA Compensation and Pension examinations and other treatment record sources that are on file. Applicable to the first time period under consideration from 1973 to 2016, to obtain the next higher 30 percent rating there is required, under the prior Diagnostic Code 7345 (as in effect prior to July 2, 2001): minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures. Also potentially for application, from July 2, 2001 onwards, a higher 20 percent rating is available for the following: having had daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having total duration of at least two weeks, but less than four weeks, during the past 2-month period. 38 C.F.R. § 4.114, Diagnostic Code 7354. For the second time period under consideration from November 28, 2016 onwards, to obtain the next higher rating of 60 percent the following is required: 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. 38 C.F.R. § 4.114. The applicable evidence is as follows. In June 1973, there was a VA general medical examination completed where the Veteran indicated having had infectious hepatitis January 1971 while stationed in Korea. He stated that he still had symptoms of the condition and had been unable to get a job because of this. Physical findings were all normal. The Veteran further reported as to this condition, that his appetite was good, but his bowels were irregular. His abdomen was soft. Liver, spleen, and kidneys were not palpable. There was no tenderness or rigidity. There was good peristalsis. No fissures, fistulas, or hemorrhoids. The Veteran now reported that at this time he had no energy, felt exhausted at all times and could not get a job due to this. The diagnosis given was residuals of infectious hepatitis. This examination does not support a 30 percent rating because although the Veteran had fatigue, he did not have anxiety. Although he reported irregular bowels, the examiner did not state that dietary restriction or other therapeutic measures were needed for gastrointestinal disturbance. Thereafter, there was a September 2006 private clinical provider’s gastroenterology consult which indicated, that the Veteran reported with a significant past GI medical history of having hepatitis C. He denied any nausea, vomiting, heartburn or dysphagia. He had “rare intermittent constipation.” He was status post a colonoscopy. There was a history of alcohol overuse and he quit 2 years previously. He was considered to be in no acute distress and his vital signs were stable. The diagnosis was hepatitis C with an ALT of 125. CBC was normal. No evidence of end stage liver disease by examination. He had gained weight. Also present were elevated liver enzymes. The assessment was advanced hepatitis C. The Veteran gained approximately five pounds from June 2006, when he weighed 196.5 pounds, to October 2006, when he weighed 201.5 pounds. An October 2006 abdominal ultrasound noted that, “[t]he liver appears mildly enlarged measuring 19.1 cm in maximal length.” The impression was “[m]ild hepatomegaly.” On further evaluation in March 2007, he had a recent liver biopsy that showed portal fibrosis. He was taking milk thistle at this time. Otherwise, the Veteran denied hypertension, diabetes, kidney stones, kidney infection. His liver and spleen were not able to be felt on examination. The rest of the review of systems were normal. The assessment was of having had genotype 1 with chronic liver disease, that would need to be treated. It was explained that there was a 20-25% likelihood of response to pegylated interferon and ribavirin. Also mentioned was a new clinical trial with protease inhibitor. An August 2007 from a private physician and GI disease specialist, indicate that the Veteran was then undergoing treatment for hepatitis C that involved various medications including Ribavirin, Peg-Intron and Protease, and the numerous known side effects of those medications were listed. However, the Veteran’s physician did not state which, if any, of the listed potential side effects the Veteran had. The Veteran underwent a hemic disorders VA examination in April 2008. The examiner noted that in 2006, he had hepatomegaly and easy fatigability. He reported that his weakness had improved with treatment. In his October 2008 statement, the Veteran stated that he had fatigue, anorexia, and pain in his upper body. He also stated he had nausea and vomiting. His statement was his Notice of Disagreement with the rating decision on appeal. It is less credible than the medical evidence of record regarding nausea and vomiting and anorexia. It is credible with regard to fatigue because that is consistently shown in the medical evidence. However, loss of appetite, nausea, and vomiting were denied in VA and private records. A VA infectious disease note shows that on evaluation in April 2009, after completing 48 weeks of treatment for hepatitis C one year previously, the Veteran now stated he felt lousy, tired, nauseous. He had “no liver-related complaints.” He was still depressed. He also stated that he snored, woke up with a headache. He denied Tylenol or iron supplements. Upon physical examination of his abdomen, he was specifically found to have no hepatosplenomegaly. The impression was that the Veteran “has many somatic complaints but no liver related complaints.” The evidence discussed above from September 2006 to April 2009 does not support a 30 percent rating under the pre-2001 criteria because his gastrointestinal disturbance did not necessitate dietary restrictions or other therapeutic measures. In order to meet the 30 percent criteria, minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance necessitating dietary restriction or other therapeutic measures must be present because of the of the conjunctive “and.” It does not support a 20 percent rating under the current criteria because he did not have “intermittent fatigue, malaise, and anorexia.” All three are needed because of the use of the conjunctive “and.” Anorexia is defined as, “lack or loss of the appetite for food.” Dorland’s Illustrated Medical Dictionary, 96 (32nd ed. 2012). The record does not show that the Veteran had lack or loss of appetite for food. Additionally, the evidence does not show that the Veteran had incapacitating episodes. For the purposes of rating hepatitis C under the current Diagnostic Code 7354, an “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. at Note (2). The record does not provide probative evidence that the Veteran took to his bed because of his symptoms. The November 2009 report from an outside private consultant, Dr. C. B. indicates the Veteran reported that his service-connected condition now involved “constant” fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and upper quadrant pain that kept him from being able to commute to work. (The report erroneously listed the Veteran’s original expected retirement date from military service as December 2011.) According to Dr. C. B., on physical exam the Veteran had an enlarged palpable liver edge which was tender. An ultrasound in 2006 had shown an enlarged liver at 19.1cm in maximal length with impression of “mild hepatomegaly.” According to Dr. C. B., he maintained that the Veteran’s condition warranted a 60 percent rating, notating that the Veteran had hepatomegaly by examination and prior ultrasound, substantial weight loss of 30 pounds, constant fatigue, malaise, anorexia, and diarrhea which were said to have occurred daily. He was considered unable to work due to these problems. Records did not show a more plausible etiology for current loss of work or constitutional symptoms. The opining physician again emphasized there had been hepatomegaly as far back as 2006. Dr. C. B. argued that the 60 percent rating criteria were met “due to his hepatomegaly alone.” The pre-2001 criteria do not contemplate hepatomegaly. Hepatomegaly alone also does not cause the 60 percent criteria to be met under the current criteria. Additionally there must be daily fatigue, malaise, and anorexia with substantial weight loss. The November 2009 letter from Dr. C. B., showed a suddenly vastly greater level of symptomatology that is not consistent with the rest of the record. The findings as stated are conclusory, in the form of an enumerated list without discussion of the interview with the Veteran. There clearly was not an extensive, detailed, observationally supported grounds from an actual examination to demonstrably show the preceding. The description of the physical examination conducted was that the Veteran’s liver was enlarged without other information. Dr. C. B.’s report is afforded no probative weight due to its conclusory nature and significant inconsistency with the other evidence of record. Significantly, only five months prior to his report, the Veteran was noted to have “no liver related complaints” while being specifically treated for his hepatitis C in the hepatitis C clinic at a VAMC in April 2009. Because it is not afforded probative weight, his report does not support a finding that, in addition to hepatomegaly, he had daily fatigue, malaise, and anorexia with substantial weight loss. It does not support a finding that the Veteran had incapacitating episode for a duration of at least six weeks during the previous year. The letter does not address whether the Veteran took to his bed due to his symptoms. For the same reasons, Dr. C. B.’s report does not support a 30 percent rating under the pre-2001 criteria. In addition to not being probative, the report does not list gastrointestinal disturbance that necessitates dietary restriction or other therapeutic measures. It also does not support the 20 or 40 percent under the current criteria. For the reasons above, his conclusory list of the severity and frequency of his symptoms are not probative and do not support a finding that his symptoms are “daily,” Further, it does not address dietary restrictions or continuous medication. As noted above, it does not support a finding that the Veteran had incapacitating episodes that caused him to take to his bed. At the November 2012 Board hearing, the Veteran’s representative indicated that there were symptoms then present which consisted of incapacitation, nausea, vomiting, weight loss, cramping, and right upper quadrant pain. The Veteran testified that his weight “fluctuated” and that he lost approximately 30 pounds between 2006 and 2007, while he was undergoing treatment for hepatitis C. According to a January 2013 lay witness statement from a family member, the Veteran due to his condition had started complaining of being nauseated, muscles being sore, pain across top of abdomen, and being tired all the time. He started taking Tylenol for the stomach pain and sore muscles. He had a lost appetite and often refused food, and lost weight. He no longer did yard work. He took Maalox for his nausea and vomiting and tried to eat crackers to settle his stomach. A January 2013 statement from a former co-worker indicated that having worked with the Veteran from 1990 to 2009 for the same government agency, a department for banking, during those years the Veteran was observed to exhibit signs of fatigue and clumsiness. He would look pale, dull and sometimes in a daze. He was absent from work numerous times due to illness. He demonstrated a lack of concentration, inability to perform work and frequent absences, and apparently could not complete assignments on time. Eventually this led to the requirement of the Veteran’s retirement in October 2009. The evidence from November 2012 through January 2013 does not support a higher rating prior to November 2016. First, the evidence does not support a finding that there were incapacitating episodes because it does not show that the Veteran took to his bed due to his symptoms. Under the pre-2001 criteria, it does not show that the Veteran had gastrointestinal disturbance that necessitated dietary restriction or other therapeutic measures to warranted a 30 percent rating or moderate liver damage. The laypeople are competent to report observable symptoms but the record does not show them to have the expertise needed to state that he has damage to an internal organ, which is not a process readily observable through one’s senses. Under the current criteria, the lay statements do not support a finding that the Veteran requires dietary restriction or continuous medication to meet the 20 percent criteria. Nor does it show that the Veteran has hepatomegaly, which is an enlargement of the liver, an internal organ. Enlargement is noted by imaging studies or through palpation. The lay witnesses do not have the medical knowledge of human anatomy needed to successfully attempt to feel a liver, nor have they so asserted. The evidence does not support a finding that the current 60 percent criteria are met also because they do not support a finding that there is hepatomegaly. For the entire appeal period prior to November 28, 2016, the 100 percent criteria are not met under the old or current criteria. First, the record does not show that rest therapy was required. Additionally, the record does not support “marked” gastrointestinal symptoms. Instead, it shows intermittent or no gastrointestinal symptoms, and there is a specific finding of no liver-related complaints. Although the Veteran had abnormal liver testing, there were no “marked” gastrointestinal symptoms. Under the current criteria, the Veteran’s symptoms are not “near-constant.” Dr. C. B. provided a conclusory list of his symptom and stated that they were daily or constant, but as noted above his report is not probative. At his hearing, he testified that he moderated his activities, doing “a little at a time per day” to avoid symptoms. The statement from his former co-worker, A. S., shows that the Veteran had symptoms that were observable, however, he was still reporting to work, which supports a finding that his symptoms were not both near constant and debilitating. The statement from R. L. showed that the Veteran stopped maintaining his lawn and engaging in outdoor activities and that he was irritable and lethargic. However, R. L. is not competent to attribute these symptoms to hepatitis C because she lacks medical training that is needed to determine what symptoms are due to this condition. Likewise, C. O. is competent to describe symptoms she observed. However, her statement does not support a finding of debilitation due to these symptoms. The 100 percent criteria are meant to be more severe than the 40 or 60 percent criteria. The difference between the 40 and 60 percent criteria and the 100 percent criteria is the requirement that the symptoms are “near-constant” and “debilitating.” Inherently because the symptoms set forth in the 100 percent criteria are intended to be rated as more severe, “debilitating” must be considered to be worse than the 40 or 60 percent criteria. Subsequently in November 2016 on VA examination for hepatitis and liver conditions, the diagnosis at outset was hepatitis C. He now regularly had routine lab work done every 4 months. The Veteran reported complains of anxiety, depression, fatigue, blurred vision, nausea, vomiting and intermittent abdominal pain as side effects of his treatment. Continuous medication was not now required for control of symptoms. The examiner noted that fatigue, nausea, vomiting, and right upper quadrant pain were “intermittent.” The current objective symptoms attributable to the condition were fatigue, nausea, vomiting, weight loss (sustained loss of 16 pounds over three months), intermittent right upper quadrant pain. There were not any incapacitating episodes. There were no signs of cirrhosis, and there was no injury to the liver. The examiner noted the abdominal ultrasound from October 2006 that showed mild hepatomegaly. A liver biopsy confirmed there was chronic hepatitis. The examiner stated that his condition did not impact his ability to work. By an April 2017 statement, the Veteran contended as follows: “A 40 percent rating is not sufficient because my total duration of the symptoms are more than the 40 percent duration of at least two weeks, but less than four weeks, during the past 12 months period. My episodes are at least six to eight weeks during the past 12-month period. My daily fatigue, malaise, anorexia (with minor weight loss), vomiting, arthralgia / joint pain, incapacitating upper right quadrant pain having a total duration of at least six to eight weeks during the past 12-month period.” On VA re-examination May 2017, it was stated that the progression of the condition was that it had gotten worse. Treatment for the condition included interferon. The Veteran had daily fatigue and intermittent malaise. He did not have anorexia, vomiting, nausea, arthralgia, or weight loss. He had daily right upper quadrant pain and hepatomegaly. There were no incapacitating episodes. There was present fatigue as a symptom while at work. From November 2016 onwards, the higher 40 percent evaluation having already been awarded effective November 28, 2016, the Board finds that the requirements for a 60 percent rating are not demonstrated. As shown upon VA examination in November 2016, without question there was present intermittent fatigue, nausea, vomiting, weight loss (sustained loss of 16 pounds over three months), intermittent right upper quadrant pain, and finally a mild hepatosplenomegaly. In May 2017 his fatigue and right upper quadrant pain were daily. There was notable symptomatology here of some severity, though the dividing line between 40 and 60 percent is minor versus substantial weight loss or other indication of malnutrition, and realistically speaking the former is applicable here. For the purposes of evaluating conditions under 38 C.F.R. § 4.114, “substantial weight loss means a loss of greater than 20 percent of the individual’s baseline weight, sustained for three months or longer,” and “minor weight loss means a weight loss of 10 to 20 percent of the individual’s baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. The VA examiner stated that the Veteran’s baseline weight was 200 pounds and he currently weighed 184 pounds. This represents a loss of 16 pounds. 20 percent of 200 pounds is 40 pounds. Therefore his weight loss was not substantial. Also noted is hepatosplenomegaly was at the “mild” level. On the whole, symptomatology was not more closely approximated by a 60 percent rating. Additionally, those symptoms and findings and did not demonstrate worsening from that level, pursuant to May 2017 VA examination. While the notation on the examination was the condition worsened the objective findings do not indicate this fact. Also, at no point since November 2016 did the Veteran have any incapacitating episodes of the condition where he took to his bed. Accordingly, there is not warranted a 60 percent rating from November 28, 2016 onwards. Additionally the 100 percent criteria are not met. The Veteran states that he is debilitated by his condition. As noted above, the 100 percent criteria are meant to be more severe than the 40 or 60 percent criteria. The difference between the 40 and 60 percent criteria and the 100 percent criteria is the requirement that the symptoms are “near-constant” and “debilitating.” Inherently because the symptoms set forth in the 100 percent criteria are intended to be rated as more severe, “debilitating” must be considered to be worse than the 40 or 60 percent criteria. Furthermore, the VA examiner noted that these symptoms were intermittent. When considering the evidence particularly from an overall standpoint, the requirement for increase are not met here. The preponderance of the evidence weighs against indication of greater severity of symptoms as would meet the 20 percent level. Accordingly, the grounds for recovery are not met, and the claim must be denied. VA’s benefit-of-the-doubt doctrine is not warranted under these circumstances. See 38 C.F.R. § 4.3. 2. The claim for a TDIU. Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the individual is unable to secure and maintain substantially gainful employment because of the severity of her service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is “[in]capable of performing the physical and mental acts required by employment,” and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes the situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, “marginal employment” shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Where the claimant’s working capacity might be limited to “marginal employment,” the question of whether marginal employment must be addressed including where the Veteran is not presently employed. See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016). Having reviewed the evidence in this case, it is clear that the record does not substantiate a TDIU. The Board referred this case to the Director of the Compensation Service for extraschedular consideration. The Director recommended that the TDIU be denied. Such a decision by the Director is not evidence. It is simply a decision that is adopted by the RO and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Director’s recommendation is not afforded probative weight in this case. The Veteran last worked in 2009 when retiring from U.S. Federal government employment. The 2016 VA examination however documented that there was no impact on ability to work, due to hepatitis. At his November 2016 VA examination, he reported that his job involved office work and some travel to West Africa. Per his VA records he completed treatment for his chronic hepatitis C in April 2008 with ribavirin, Peg Interferon and Protease. It is less likely that the Veteran’s service-connected hepatitis C precludes him from securing and following substantially gainful employment consistent with his education and occupational experience. The Veteran has no evidence of cirrhosis in the provided medical records reviewed and completed his treatment with the medications 8 years ago. The side effects of these medications are most likely while the Veteran is actively taking them. The Veteran’s VA treatment notes in 2008 also mention that his current symptoms are not GI related. A May 2017 addendum clarified that the Veteran’s hepatitis C would cause him to need frequent rest breaks at work due to fatigue and weakness. On his VA Form 21-8940, the Veteran reported last working in 2009. He had worked as an accountant since 1975. He earned a 4 year college degree and later a masters degree in 1987. Working as an accountant is an office job that is not physically demanding. It is reasonable to conclude that breaks would be available while working as an accountant. The Veteran asserted that he was “forced” to retire because of his disability. This is not elsewhere substantiated in the record. His co-worker A. S. stated that the Veteran “decided to retire” due to his symptoms. The Board is also not bound by the prior remand directive to refer the matter for Director review. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the Board’s referral decision under 38 C.F.R. § 4.16(b) does not require the Board to award an extraschedular TDIU). In Ray v. Wilkie, the Court recognized that a referral decision under 38 C.F.R. § 4.16(b) is a factual finding but it is based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. 31 Vet. App. 58. Accordingly, the claim is being denied. The evidence weighs against recovery with regard to the claim. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.