Citation Nr: 20077371 Decision Date: 12/07/20 Archive Date: 12/07/20 DOCKET NO. 15-44 933 DATE: December 7, 2020 ORDER Entitlement to a disability rating in excess of 10 percent prior to June 3, 2019 for service-connected Hepatitis C, and in excess of 20 percent from June 3, 2019 is denied. FINDINGS OF FACT 1. Prior to June 3, 2019, the Veteran’s Hepatitis C manifested in intermittent fatigue, malaise, anorexia, arthralgia, and right upper quadrant pain, with restricted consumption of beer but without incapacitating episodes during the past twelve-month period. 2. From June 3, 2019, the Veteran’s Hepatitis C is resolved, although the Veteran maintains an inability to walk any distance due to extreme fatigue; the service-connected Hepatitis C has not resulted in daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes having a total duration of at least four weeks during the past 12-month period. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for service-connected Hepatitis C prior to June 3, 2019 and in excess of 20 percent since June 3, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.114, Diagnostic Code (DC) 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. In June 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of that proceeding is of record. In November 2019 the Board remanded the issue on appeal for additional development of the record. In a September 2020 rating decision, the RO granted service connection for liver cirrhosis, and assigned a noncompensable rating, effective from November 25, 2014. In a September 2020 supplemental statement of the case, the RO continued the initially assigned noncompensable rating for the service-connected cirrhosis. Notably, however, the Veteran has not, to date, submitted a notice of disagreement with the initially assigned noncompensable rating for the service-connected cirrhosis. Accordingly, that issue is not currently in appellate status or before the Board at this time. 1. Entitlement to a disability rating in excess of 10 percent prior to June 3, 2019 for service-connected Hepatitis C, and in excess of 20 percent from June 3, 2019 The Veteran contends that his service-connected Hepatitis C warrants a disability rating higher than currently assigned. The Veteran’s Hepatitis C is rated as 10 percent disabling from June 1, 2012 and 20 percent from June 3, 2019 under 38 C.F.R. § 4.114, DC 7354. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of a disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). Under DC 7354, a 0 percent (noncompensable) rating is assigned for non-symptomatic hepatitis C. A 10 percent rating is assigned for 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 twelve-month period. A 20 percent rating is assigned for 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 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). Note (1) to DC 7354 provides that sequelae, such as cirrhosis or malignancy of the liver, is to be rated under an appropriate DC, but not to use the same signs and symptoms as the basis for a rating under DC 7354 and under a DC for sequelae. (See 38 C.F.R. § 4.14). Note (2) provides that, for purposes of rating conditions under DC 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7354. The term “substantial weight loss” is defined as a loss of greater than 20 percent of baseline weight, sustained for three months or longer; and the term “minor weight loss” is defined as a weight loss of 10 to 20 percent of baseline weight, sustained for three months or longer. See 38 C.F.R. § 4.112. The Veteran underwent a VA examination in July 2013 for Hepatitis C. The examiner noted a diagnosis of Hepatitis C in 2001. The report indicates that continuous medication was not required for control of his liver condition, and that the Veteran has signs or symptoms attributable to his Hepatitis C, including intermittent fatigue, malaise, anorexia, arthralgia, and right upper quadrant pain. The examiner noted that the condition requires dietary restriction, noting that he “cannot go out to socialize to drink a few beers, feels down and depressed because he is not sure what life will bring.” The examiner noted that the Veteran feels down because of his Hepatitis C and walks 4-5 miles a day as “self-therapy to forget about it.” The report indicates that the Veteran has not had any incapacitating episodes due to his Hepatitis C during the past 12 months. In March 2011 a CT was performed, revealing an impression of no significant interval change since the prior examination in April 2006. The report indicates that a liver biopsy was performed in 2011 showing Hepatitis C with stage I fibrosis. The examiner noted that the Veteran’s liver condition does not impact his ability to work. In the November 2013 notice of disagreement (NOD), the Veteran stated that Hepatitis C has changed his whole life. He stated that he worries all the time that he could get worse and die from it. In the December 2015 VA Form 9, the Veteran stated that his Hepatitis C has caused him to become extremely fatigued daily and to vomit. He stated that it seems that his disease is getting worse all the time. In a June 10, 2015 record, it indicates that the Veteran had chronic Hepatitis C and was returning to the liver clinic 13 weeks after finishing a 23-week treatment and that the Veteran reported that he feels well except for some neck pain. It indicates that the Veteran denied any symptoms relevant to liver disease in that he has had no jaundice, edema, ascites, hematemesis, melena, or hepatic encephalopathy. It indicates that the Veteran denied fatigue, fever, chills, or myalgia. VA treatment records show that a July 8, 2019 record shows a history of compensated cirrhosis; and, Hepatitis C status post antiviral treatment and considered cured. During the June 2019 Board hearing, the Veteran testified that his condition worsened since his previous VA examination in July 2013. Accordingly, the Veteran was afforded a VA examination in December 2019. The December 2019 VA examination report indicates that the Veteran states that he now has cancer of the liver due to Hepatitis C, although no liver cancer diagnosis was indicated on that examination report. The Veteran also reported severe abdominal pain as well as hot and cold spells. The examiner noted that the Veteran had radiation therapy for Hepatitis C, and the Hepatitis C has resolved. The examiner also indicated that that continuous medication is not required for control of his liver condition, but stated that the Veteran indicates signs and symptoms attributable to his Hepatitis C include intermittent fatigue, nausea, vomiting, and right upper quadrant pain [due to liver cirrhosis]. It indicates that the Veteran has not had any incapacitating episodes during the past 12 months. The examiner noted that the Veteran’s liver condition impacts his ability to work and that he is unable to walk any distance due to extreme fatigue. VA treatment records show a diagnosis of cirrhosis. See, e.g., March 2020 VA liver ultrasound report. However, an April 6, 2020 record indicates that the Veteran denied having fatigue, fever, chills, dizziness, lightheadedness, chest pain, palpitations, shortness of breath, abdominal pain, change in bowel habits, black stools, change in urinary habits, or lower extremity swelling. Prior to June 3, 2019, the competent medical evidence of record does not show that the Veteran experienced symptoms rising to the level of a 20 percent disability rating for Hepatitis C under DC 7354. While the Veteran is competent to report his observable symptoms related to his condition, the Board affords the competent medical evidence of record higher probative value. The Veteran previously reported in 2015 that his Hepatitis C caused him to become extremely fatigued daily and to vomit; however, medical evidence of record does not corroborate this statement. The Veteran reported intermittent fatigue, malaise, anorexia, arthralgia, and right upper quadrant pain, and that his condition requires dietary restriction, specifically that he cannot socialize or drink a few beers. Additionally, the Veteran reported that he walks 4-5 miles a day. As noted above, VA treatment records show that on June 10, 2015, the Veteran denied any symptoms relevant to liver disease. The medical evidence of record does not show daily fatigue, malaise, anorexia, continuous medication, or incapacitating episodes lasting at least two weeks during the past 12-month period. Thus, the Veteran’s symptoms prior to June 3, 2019 fall squarely within the currently assigned 10 percent disability rating, and a rating in excess of 10 percent is not warranted. From June 3, 2019, the Veteran reported that the symptoms of his Hepatitis C had worsened. The December 2019 VA examination shows that the Veteran reported severe abdominal pain, hot and cold spells, and also reported that he had liver cancer; however, there is no formal diagnosis of cancer of record. The report shows that continuous medication is not required but that the Veteran experiences intermittent fatigue, nausea, vomiting, and right upper quadrant pain. The Veteran did not experience any incapacitating episodes of his symptoms in the past 12 months; however, the examiner does note that the Veteran is unable to walk any distance due to extreme fatigue. Based on the evidence of record, the Veteran’s symptoms from June 3, 2019 fall squarely within the currently assigned 20 percent disability rating, and a rating in excess of 20 percent is not warranted. The record does not show that the Veteran’s symptoms have risen to the level of severity contemplated by a 40 percent disability rating at any time during the period on appeal. At no time during the appeal period has the Veteran’s Hepatitis C manifested in daily fatigue, malaise, and anorexia, with minor or substantial weight loss and hepatomegaly, or incapacitating episodes lasting at least four weeks during the past 12-month period, or near-constant debilitating symptoms required for higher ratings than currently assigned under DC 7354. (Continued on the next page)   The Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the service-connected Hepatitis C prior to June 3, 2019 and in excess of 20 percent from June 3, 2019. The benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.