Citation Nr: A20018490 Decision Date: 12/14/20 Archive Date: 12/14/20 DOCKET NO. 180919-884 DATE: December 14, 2020 ORDER Entitlement to a 10 percent disability rating for service-connected hepatitis C with cirrhosis of the liver is granted. FINDING OF FACT From July 13, 2016, the Veteran's hepatitis C with cirrhosis of the liver has been manifested by abdominal pain, weakness, and malaise. It has not been manifested by portal hypertension and splenomegaly. CONCLUSION OF LAW The criteria for entitlement to a 10 percent disability rating for service-connected hepatitis C with cirrhosis of the liver have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.112, 4.114, Diagnostic Codes (DCs) 7312-7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on multiple tours of active duty, including from August 1978 to August 1984 and from March 1988 to August 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision in the legacy appeals system. In June 2018, the Veteran elected the modernized review system. 38 C.F.R. § 19.2(d). Specifically, the Veteran filed a Supplemental Claim when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. The RO then issued a RAMP rating decision in August 2018, which considered the evidence of record as of the date that VA received the RAMP election form. The Veteran timely and properly appealed this RAMP rating decision to the Board and selected the Hearing docket when appealing this claim to the Board. Subsequently, a videoconference hearing was held before the undersigned Veterans Law Judge in December 2019. A transcript of this hearing has been associated with the record. As a preliminary matter, the Board notes that during the December 2019 Board hearing, the Veteran’s representative argued that the medical evidence of record as well as medical literature supports that the Veteran’s current diabetes mellitus, type II, is a “complication” of his service-connected hepatitis C with cirrhosis of the liver. As such, the Veteran’s representative asked the Board to “make a decision” on the Veteran’s entitlement to service connection for diabetes mellitus, as secondary to the Veteran’s hepatitis C with cirrhosis of the liver. The Board has considered this argument; however, the United States Court of Appeals for Veterans Claims (Court) has held that in the absence of a sufficient manifestation of intent to apply for benefits for a particular disease or injury, documents providing medical information about the condition, in and of itself, is not an informal claim for VA benefits. Ellington v. Nicholson, 22 Vet. App. 14 (2007). As such, this issue is not before the Board. The Veteran and his representative are invited to submit a formal claim for service connection for the Veteran’s diabetes mellitus, type II, to include as secondary to the Veteran’s hepatitis C. Entitlement to a 10 percent disability rating, and no higher, for service-connected hepatitis C with cirrhosis of the liver is granted. The Veteran contends that he is entitled to a compensable rating for his service-connected hepatitis C with cirrhosis of the liver based on the severity of his symptoms, which he asserts he experiences daily. See June 2018 statement in support of claim (VA 21-4138). Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Currently, the Veteran's service-connected hepatitis C with cirrhosis of the liver has been rated at 0 percent from March 1, 2009 and was rated at 40 percent disabling prior to then. 38 C.F.R. § 4.114, Diagnostic Codes 7312-7354. By way of history, the Veteran filed this current claim for an increased disability rating for his hepatitis C in July 13, 2016. As such, the period on appeal will be from July 13, 2016 onward. Under Diagnostic Code 7312 (cirrhosis of the liver), a 10 percent evaluation is warranted for symptoms such as weakness, anorexia, abdominal pain, and malaise. See 38 C.F.R. § 4.114, Diagnostic Code 7312. A 30 percent evaluation is warranted for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. Id. A 50 percent evaluation is warranted for history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). Id. A 70 percent evaluation is warranted for 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. Id. A 100 percent evaluation is warranted for generalized weakness, substantial weight loss, and persistent jaundice, or; with one of the following refractories to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). Id. Note 1 to Diagnostic Code 7312 provides that, for rating under Diagnostic Code 7312, documentation of cirrhosis (by biopsy or imaging) and abnormal liver function tests must be present. 38 C.F.R. § 4.114. Under Diagnostic Code 7354 (hepatitis C), a 10 percent evaluation 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 12-month period. See 38 C.F.R. § 4.114, Diagnostic Code 7354. A 20 percent evaluation 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. Id. A 40 percent evaluation 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. Id. A 60 percent evaluation 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. Id. A 100 percent evaluation is assigned when there are near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. With regard to the notes following Diagnostic Code 7354, under Note (1): Evaluate sequelae, 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. (See 38 C.F.R. § 4.14). Note (2): For purposes of evaluating conditions under 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. For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.113. In September 2016 the Veteran was afforded a VA examination for hepatitis, cirrhosis, and other liver conditions. The VA examiner indicated that the Veteran is service connected for hepatitis C with cirrhosis of the liver. The Veteran reported during the examination that he previously underwent treatment with Pegasys. The Veteran reported during the examination that the “virus is currently undetected.” The VA examiner indicated that continuous medications were not required for control of the Veteran’s liver conditions. Further, the VA examiner indicated that the Veteran did not currently have any signs or symptoms attributable to chronic or infections liver diseases or cirrhosis of the liver. The VA examiner remarked that the Veteran’s hepatitis C with cirrhosis of the liver was “in remission.” As mentioned above, in December 2019 the Veteran testified before the Board at a videoconference hearing. During the hearing, the Veteran testified that his primary symptoms are “exhaustion and fatigue.” The Veteran reported that his energy level is very low. The Veteran stated that he experiences fatigue and malaise daily and indicated that these symptoms “[are] so commonplace, it’s just my way of life now.” The Veteran also reported that he has experienced prostrating or incapacitating attacks of these symptoms, where he often feels exhausted just from walking from one side of the house to the other, or he will sit down in a chair and “I wake up and it’s two hours later.” The Veteran indicated that he has been experiencing this severity level of symptoms of his service-connected hepatitis C with cirrhosis of the liver since at least 2016. The Veteran also testified that he experiences abdominal pains “all the time” and that he has experienced such pain since his diagnosis of cirrhosis of the liver. For the period on appeal, the Board finds that a disability rating of 10 percent, and no higher, is warranted for the Veteran’s service-connected hepatitis C with cirrhosis of the liver under 38 C.F.R. § 4.114, Diagnostic Codes 7312. During the Veteran’s September 2016 VA examination, the VA examiner reported that the Veteran’s hepatitis C with cirrhosis of the liver was undetected and/or in remission. However, the Veteran competently and credibly testified during the December 2019 Board hearing that he experiences symptoms such as abdominal pain, malaise, weakness, and fatigue sufficient for a 10 percent disability rating under Diagnostic Code 7312. See 38 C.F.R. § 4.114. Based on the evidence described above, the Veteran has not shown portal hypertension, splenomegaly, hepatic encephalopathy, erosive gastritis, episodes of ascites, substantial weight loss, nor near constant debilitating symptoms as required by 38 C.F.R. § 4.114. Therefore, a rating in excess of 10 percent is not warranted. The Board has considered the statements of the Veteran regarding the severity of his hepatitis C and acknowledges that he is competent to report the occurrence of observable events or the presence of a disability or symptoms of a disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159 (a)(2) (2018); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran, when considered in the full context of his treatment records and VA examination reports, do not meet the burden for a rating higher than 10 percent with respect to determining the severity of the Veteran's hepatitis C with cirrhosis of the liver. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.