Citation Nr: A20019047 Decision Date: 12/21/20 Archive Date: 12/21/20 DOCKET NO. 190716-23767 DATE: December 21, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for hepatitis c with liver cirrhosis is denied. FINDING OF FACT For the entire period on appeal, the evidence of record demonstrates that the Veteran's hepatitis C with liver cirrhosis was manifested by no more than subjective complaints of fatigue. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for hepatitis c with liver cirrhosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 U.S.C. §§ 4.114, Diagnostic Code 7312-7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to January 1971, and then from June 1971 to January 1972. In a March 2019 rating decision, the Agency of Original Jurisdiction (AOJ) denied a disability rating in excess of 20 percent for hepatitis c with cirrhosis. On July 16, 2019, the AOJ received a timely VA Form 10182 in which the Veteran requested a hearing with a Veterans Law Judge (VLJ). Subsequently, in an August 11, 2020 letter, the Veteran, through his representative, withdrew his request for a Board hearing and asked that the record be held open 90 days from that date to submit further evidence. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(b). Entitlement to a disability rating in excess of 20 percent for hepatitis c with liver cirrhosis. The Veteran contends that his hepatitis c with liver cirrhosis worsened in 2018. The Veteran's hepatitis C with cirrhosis of the liver is currently rated as 20 percent disabling under the criteria of 38 C.F.R. § 4.114, Diagnostic Code 7312-7354. Hyphenated diagnostic codes (DC) are used when a rating under one DC requires the use of an additional DC to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 7312 (cirrhosis of the liver), a 10 percent rating is warranted for symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating is warranted for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent evaluation is warranted for history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). 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. 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). 38 C.F.R. § 4.114, Diagnostic Code 7312. 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 DC 7354, a noncompensable rating applies where hepatitis C is non-symptomatic. A 10 percent rating applies where hepatitis C results in 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 applies where hepatitis C results in 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 applies where hepatitis C results in 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 applies where hepatitis C results in 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 applies where hepatitis C results in near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. Note (1) to DC 7354 directs that sequelae, such as cirrhosis or malignancy of the liver, should be evaluated under an appropriate DC, but the same signs and symptoms should not be used as the basis for evaluation under DC 7354 and under a DC for sequelae. Note (2) to DC 7354 provides that, for purposes of evaluating 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. VA received the Veteran’s claim for an increased disability rating for hepatitis c on January 21, 2019. A February 20, 2018 VA treatment record notes the Veteran had no fatigue. A May 1, 2018 VA treatment record notes the Veteran had been losing weight, which was described as "very encouraging." Upon examination, the Veteran denied any unintentional weight loss, night sweats or fever. No jaundice was noted, as were "[s]table fatigue symptoms". It was further noted that the Veteran "is considered cured of chronic hepatitis c infection." The Veteran was afforded a VA hepatitis, cirrhosis and other liver conditions examination in March 2019. Diagnoses of hepatitis c and cirrhosis of the liver were noted. It was noted that the Veteran was cured of hepatitis c infection. The Veteran reported fatigue and stated that he does not sleep well. It was noted that he has sleep apnea for which he uses a CPAP nightly. Continuous use of medication required for control of his liver conditions was not noted. No incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain during the prior 12 months were noted. It was noted that the Veteran did not have any signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis of cirrhotic phase of sclerosis cholangitis. It was noted that the Veteran's liver condition does not impact his ability to work. An August 31, 2020 VA treatment record notes the Veteran reported he was doing well with no acute complaints. A review of a June 2, 2020 liver ultrasound noted coarsening and heterogeneity of the hepatic echotexture with nodularity of the hepatic contour "as can be seen with cirrhosis." No evidence of hepatic masses concerning for hepatocellular carcinoma were noted. His hepatitis c was noted as "treated/cured". Here, the Board finds that the competent evidence of record is against finding that the Veteran’s hepatitis c results in 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. Nor does the competent evidence of record show that his liver cirrhosis more closely resembled portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. The Board finds that for the entire appeal period, the Veteran’s hepatitis c with cirrhosis was manifested by no more than subjective complaints of fatigue. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 20 percent for hepatitis c with cirrhosis. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.