Citation Nr: 20014966 Decision Date: 02/27/20 Archive Date: 02/26/20 DOCKET NO. 17-36 346A DATE: February 27, 2020 ORDER Entitlement to a compensable rating for service-connected hepatitis C, for accrued benefits purposes, is denied. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s hepatitis C has shown to be nonsymptomatic. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for service-connected hepatitis C, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code (DC) 7345. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to February 1962; and passed away in April 2013. The appellant substitutes the Veteran as his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pasay City, Philippines. Entitlement to a compensable rating for service-connected hepatitis C, for accrued benefits purposes. The appellant contends that the Veteran’s hepatitic C warrants a compensable evaluation, specifically of at least 10 percent, as his symptoms reflected that level of severity. Service connection for hepatitis C was awarded in the October 2015 rating decision on appeal, with an initial noncompensable evaluation assigned, effective November 25, 2008 (date claim to reopen was received by VA). Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. The Veteran’s hepatitis C has been appropriately rated under Diagnostic Code 7345, to which he was rated as noncompensable. 38 C.F.R. § 4.114, DC 7345. Pursuant to DC 7345, a noncompensable evaluation is warranted when the condition is nonsymptomatic. A 10 percent evaluation is warranted 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 duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent evaluation is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction and 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 evaluation is warranted 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 evaluation is warranted 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. The highest rating of 100 percent is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). For the purposes of evaluating conditions under DC 7354, “incapacitating episode” means period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See Id., Note (2). After review of the evidence, the Board notes that a compensable rating is not warranted for any period on appeal. The medical evidence of record reflects that the Veteran has been diagnosed and treated for his hepatitis C; however, no related incapacitating episodes have been shown. Nevertheless, the Board notes that the evidence does reflect symptoms of nausea, fatigue, weight loss, and anorexia, but they are not shown to be attributed to the Veteran’s hepatitis C, nor is there any evidence of malaise, which is required for a 10 percent disability rating in the absence of incapacitating episodes. Additionally, the Board notes that, even though the appellant has contended that the Veteran has experienced “fatigue, nausea, vomitting etc.” (See NOD, October 2016), as stated above, these symptoms have not been shown by objective evidence to be associated with the Veteran’s hepatitis C, nor has the appellant submitted any evidence of incapacitating episodes associated with these symptoms. Therefore, as the evidence of record more closely approximates that the Veteran’s hepatitis C was nonsymptomatic, the Board finds that a noncompensable rating was properly assigned. Accordingly, the Board concludes that an initial compensable rating for the Veteran’s service-connected hepatitis C, for accrued benefits purposes, is not warranted; and the claim is denied. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find the   evidence is of such approximate balance to warrant its application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.