Citation Nr: 20024209 Decision Date: 04/08/20 Archive Date: 04/08/20 DOCKET NO. 11-18 279 DATE: April 8, 2020 ORDER Entitlement to an increased rating for hepatitis C, rated 20 percent prior to June 1, 2012, and 40 percent as of June 1, 2012, is denied. REMANDED Entitlement to service connection for a psychiatric disability, to include depression, is remanded. FINDING OF FACT 1. Prior to June 1, 2012, hepatitis C was manifested by fatigue without weight loss, but not 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 a 12 month period. 2. As of June 1, 2012, hepatitis C was manifested by anorexia, daily fatigue, hepatomegaly and malaise. However, there was no evidence of 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 a 12-month period, but not occurring constantly. 3. The hepatitis C symptoms do not present such an exceptional disability picture to make the available schedular rating inadequate. CONCLUSION OF LAW The criteria for entitlement to an increased rating for hepatitis C, rated 20 percent prior to June 1, 2012, and 40 percent as of June 1, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1974 to September 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2005 and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In June 2010 and May 2017, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. During the course of this appeal, a May 2019 rating decision established service connection for erectile dysfunction and assigned a 0 percent rating, effective March 6, 2019, and entitlement to special monthly compensation based on loss of use of a creative organ due to erectile dysfunction. Therefore, the claims for service connection for erectile dysfunction and entitlement to special monthly compensation, previously the subject of appeal, have been resolved in the Veteran’s favor, and there is no longer a case in controversy for Appellate consideration as to those claims. A November 2017 rating decision increased the rating for hepatitis C to 20 percent, effective June 29, 2005. An October 2012 rating decision increased the rating for hepatitis C to 40 percent, effective June 1, 2012. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issue of entitlement to a higher rating for hepatitis C remains on appeal. 1. Entitlement to an increased rating for hepatitis C, rated 20 percent prior to June 1, 2012, and 40 percent as of June 1, 2012 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period for which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Consideration must be given to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's hepatitis C is rated under Diagnostic Code 7354. Under Diagnostic Code 7354, which applies to the rating of hepatitis, a 0 percent rating is warranted when the condition is non-symptomatic. A 10 percent rating 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 total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted when there is 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 warranted when there is 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 warranted when there is 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 warranted when there are 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) provides that sequelae such as cirrhosis or malignancy of the liver are to be rated under an appropriate Code, but not to use the same signs and symptoms as the basis for rating under Diagnostic Code 7345 or 7354 respectively, and under a Diagnostic Code for sequelae. 38 C.F.R. § 4.114. Note (2) provides that, for purposes of rating conditions under Diagnostic Code 7345 or 7354, incapacitating episode means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The Veteran’s hepatitis C has been rated under Diagnostic Code 7354 20 percent disabling prior to June 1, 2012; and 40 percent disabling as of June 1, 2012. The Veteran contends that hepatitis C is more severe than the ratings assigned. At a February 2009 VA genitourinary examination, the Veteran denied lethargy, weakness, anorexia, and weight gain or loss. The Veteran also denied diet therapy and taking any medications. On physical examination, the Veteran's abdomen was found to be soft and non-tender. At an April 2011 VA liver examination, the Veteran did not exhibit signs of malnutrition and his abdominal examination was found to be normal, with the Veteran denying abdominal pain but reporting flank pain. The Veteran was also not receiving any treatment at the time of this examination. At the time of this examination, the Veteran's Hepatitis C was found to cause a decrease in concentration, decreased stamina, and weakness or fatigue. The Veteran's hepatitis C did not affect the Veteran's exercise, sports, recreation, travel, feeding, bathing, dressing, toileting, or grooming. In a November 2011 hepatology outpatient note, the Veteran denied fatigue, unexplained weight loss, increased abdominal girth, jaundice, decreased appetite, abdominal pain, constipation, diarrhea, and tan or tarry stools. On examination, the abdomen was obese, soft, non-fluctuant, with bowel sounds in all four quadrants. The liver was nonpalpable, with no masses, organomegaly, or tenderness noted. At a June 2012 VA liver examination, the Veteran was not on continuous medication for control of the liver condition and did not have any incapacitating episodes due to the liver condition during the past 12 months. The Veteran exhibited daily fatigue, malaise, anorexia, weakness, and arthralgia. The Veteran also had daily right upper quadrant pain and hepatomegaly that did not require dietary restriction. An April 2014 primary care physician noted that the Veteran denied fatigue, weight changes, fever, edema, weakness, abdominal pain, nausea, vomiting, and GERD. On physical examination, the abdomen was noted as being soft, nontender, with no masses, normal bowel sounds, and no rebound or guarding. The Veteran also did not have jaundice or edema. In a June 2014 liver clinic note, the Veteran denied chest pain, shortness of breath, and gastrointestinal and genitourinary problems. The Veteran also denied unexplained weight changes, nausea, vomiting, constipation, diarrhea, hematochezia, melena, lower extremity edema, increased abdominal girth, rashes, and confusion. On physical examination, the abdomen was soft, nontender, nondistended, with no organomegaly, abdominal bruits or hernias, with bowel sounds present in all quadrants. The Veteran also did not have jaundice or pitting edema. In an April 2015 hepatology outpatient note, the Veteran reported no fever, weakness, fatigue, weight change, myalgias, or arthralgias. The Veteran also denied recent nausea, vomiting, diarrhea, constipation, history of reflux, melena, change in stool color, anorexia, dysphagia, and jaundice. On physical examination, the abdomen had normal bowel sounds and was soft, nontender, and nondistended, with no flank fullness or shifting dullness or hepatosplenomegaly. The Veteran also did not have jaundice. In a January 2016 hepatology outpatient note, the Veteran reported decreasing food intake in order to lose weight. The Veteran denied bloating, nausea, vomiting, diarrhea, unexplained weight loss or gain, dark or blood-stained stools, abdominal distention, edema, confusion, and reported no change in bowel habits. On a review of systems, the Veteran was negative for fatigue, weakness, elevated liver transaminases, elevated amylase, lower limb edema, nausea, vomiting, bloating, anorexia, heartburn, difficulty swallowing, and diarrhea. On physical examination, the abdomen had normal bowel sounds, was soft, nontender, nondistended, with no flank dullness or shifting dullness or hepatosplenomegaly. The Veteran also did not have jaundice or lower extremity edema. During an August 2016 physician consultation, the Veteran denied nausea, vomiting, and diarrhea. On physical examination, the abdomen was soft, nontender, and nondistended. In a November 2016 emergency department note, the Veteran's abdomen was noted as soft and non-tender, with normal bowel sounds, and no distension, guarding, rebound, or tenderness. In November 2016, the Veteran testified before the undersigned Veteran's law judge and explained why he felt he was entitled to a higher rating and asserted that his symptoms were not adequately represented by prior examination. As a result, the Veteran was schedule for a VA examination. At a June 2017 VA hepatitis examination, the Veteran was not on continuous medication for control of his liver conditions and did not have any incapacitating episodes due to liver conditions during the past 12 months. The Veteran exhibited daily fatigue and hepatomegaly. During a July 2017 liver consultation, the Veteran denied bloating, nausea, vomiting, diarrhea, change in bowel habits, passing dark or blood-stained stools, abdominal rapid distention, lower extremities edema, confusion, and unexplained weight gain or loss. On a review of systems, the Veteran further denied constipation, reflux, melena, anorexia, dysphagia, jaundice, lower limb swelling, and focal weakness. On physical examination, the Veteran’s abdomen had normal bowel sounds, was soft, nontender, nondistended, with no flank dullness or shifting dullness, or hepatosplenomegaly. The Veteran also did not have jaundice or lower extremity edema. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The record currently contains no other examinations that are valid for rating purposes. Prior to June 1, 2012, the Board finds that the evidence shows that the Veteran's hepatitis C did not manifest as 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. Therefore, a rating higher than 20 percent disabling is not warranted prior to June 1, 2012. The Board finds that effective June 12, 2012, but not earlier, hepatitis C has warranted a 40 percent rating, but not higher. The June 2012 VA examination found that the Veteran exhibited daily fatigue, malaise, anorexia, weakness and arthralgia. The Veteran also had daily right upper quadrant pain and hepatomegaly that did not require dietary restriction. Pursuant to Diagnostic Code 7354, that level of impairment is consistent with a 40 percent rating. A higher rating is not warranted because the evidence of record does not show the Veteran has ever 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. Therefore, a rating higher than 40 percent disabling is not warranted at any point during the course of this appeal. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for hepatitis C, prior to June 1, 2012, or the assignment of a rating greater than 40 percent for hepatitis C, effective June 1, 2012. Thus, the claim for an increased rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to an extraschedular rating The Board has also considered whether referral for consideration of an extraschedular rating is warranted. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran’s disability level and symptomatology. If the schedular rating criteria do reasonably describe the Veteran’s disability level and symptomatology, the assigned schedular rating is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular rating does not contemplate the Veteran’s level of disability and symptomatology, then the RO or the Board must determine whether the Veteran’s exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. If that is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. In this case, the Veteran has alleged that hepatitis C is not adequately represented by the rating schedule. However, neither the Veteran nor representative has alleged any particular symptoms, manifestations, or treatment that warrant extraschedular consideration. Nor is there any evidence that the Veteran’s disability picture includes any symptoms, manifestations, or treatment not adequately contemplated by the rating schedule. The medical evidence of record shows symptoms no more severe than daily fatigue with minor weight loss and hepatomegaly. As a result of the schedular ratings herein, the Veteran is adequately compensated under the rating schedule for those manifestations of his Hepatitis C. Therefore, the Board finds that the Veteran’s hepatitis C does not present so exceptional or unusual a disability picture as to make impractical the application of the regular rating schedule. In addition, the evidence does not show frequent hospitalization due to hepatitis C or that hepatitis C results in marked interference with employment. Accordingly, referral to the Director of the Compensation Service for extraschedular consideration is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a psychiatric disability, to include depression. VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a current psychiatric disability is related to active service. In the alternative, the Veteran contends that a psychiatric disability is secondary to service-connected disabilities. At a June 2017 VA examination, the examiner stated that the current diagnosis of depression was not incurred in or caused by depression during service. The examiner explained that the Veteran's reported onset of depressive symptoms began after service. A February 2013 mental disorder examination stated that the depression was less likely as not caused proximately due to or the result of service-connected lumbosacral strain. There are no records of a depression diagnosis or treatment in service. Additionally, during interview, the Veteran stated that he believed that he experienced some depression when he first got to Korea. When asked, the Veteran denied any additional symptoms of depression while in service. VA records indicate and the Veteran has stated that depression began in 2006 or 2007 after being diagnosed with erectile dysfunction. The Veteran also reported increased marital conflict secondary to that problem, which increased the depression. The June 2017 VA examiner stated that the Veteran's depression was less likely as not (less than 50 percent) proximately due to or the result of service-connected hepatitis C, and right shoulder and lumbosacral disabilities. The examiner explained that the Veteran's treatment notes demonstrated that the Veteran reported having no emotional problems until 2006 when he was diagnosed with erectile dysfunction that affected his marital life, which worsened gradually to the point that his wife wanted a divorce. There are records that also indicate that the Veteran struggled with depression related to a recent motorcycle accident and marital distress. Ultimately, the examiner concluded that the Veteran's symptoms of depression appeared related to other post-service life stressors rather than being secondary to or the result of hepatitis C, a right shoulder disability, and a lumbosacral spine disability. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the June 2017 examiner relied on the absence of symptoms or treatment in-service for the negative opinions concerning the demonstrated disability and did not provide an adequate rationale for the opinions provided, the Board finds the June 2017 VA examinations to be incomplete. The Board also notes that since the June 2017 VA examination, the Veteran has established service connection for erectile dysfunction. The Veteran has continuously asserted that depression is secondary to erectile dysfunction. However, because the Veteran was not previously service-connected for erectile dysfunction, no examiner has opined as to any relationship between a psychiatric disability and now service-connected erectile dysfunction. Therefore, that constitutes a new theory of entitlement for service connection for a psychiatric disability, to include depression, for which a medical opinion is needed. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of his claimed psychiatric disability. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of the Veteran’s psychiatric disability must be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for a psychiatric disability. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims folder. 2. Then, schedule the Veteran for a VA psychiatric examination, with a psychiatrist or psychologist who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any psychiatric disability. The examiner must review the claims file, including this Remand, and should indicate review of the file in the report. If the examiner diagnoses a psychiatric disability, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disability is etiologically related to active service or any event, disease, or injury during service, including whether any psychiatric disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability, or treatment for any service-connected disability, to include hepatitis C, erectile dysfunction, should, and back disabilities, and the examiner should specifically address the contention that depression has been caused by erectile dysfunction or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability, or treatment for any service-connected disability, to include hepatitis C, erectile dysfunction, shoulder, and back disabilities, and the examiner should specifically address the contention that depression has been aggravated by erectile dysfunction. The examiner should address the Veteran’s lay statements, including hearing testimony, regarding the claimed psychiatric disability and its etiology. The examiner must consider and discuss the lay statements and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion should be provided and cannot be based solely on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.