Citation Nr: 20028882 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 10-47 063A DATE: April 24, 2020 ORDER A 40 percent rating, but no more, for hepatitis C between December 11, 2009, and March 4, 2017, is granted. A rating in excess of 60 percent for hepatitis C between March 4, 2017, and February 5, 2019, is denied. New and material evidence having been found, the application to reopen the claim of service connection for heel spurs is granted. REMANDED Service connection for heel spurs. FINDINGS OF FACT 1. The Veteran had active service from December 1972 to November 1974. 2. Between December 11, 2009, and March 4, 2017, hepatitis C was manifested by subjective symptoms of fatigue, malaise, a lack of energy, lack of motivation, diarrhea, weight loss, nausea, and body aches; objective findings included daily fatigue and malaise, weight loss, hepatomegaly, intermittent anorexia, and incapacitating episodes with a duration of between 2 and 4 weeks. 3. Between March 4, 2017, and February 5, 2019, hepatitis C has been manifested by subjective symptoms of fatigue, malaise, vomiting, and nausea; objective findings include moderately severe hepatitis C. 4. In an unappealed December 2007 rating decision, the RO denied the application to reopen a claim of service connection for a heel disorder, to include heel spurs, on the basis that the record did not contain new and material evidence establishing that the disorder occurred in or was related to service 5. The evidence submitted since the December 2007 rating decision relates to an unestablished fact necessary to substantiate the claim for heel spurs. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no more, for hepatitis C between December 11, 2009, and March 4, 2017, were met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.115, Diagnostic Code (DC) 7354 (2019). 2. The criteria for a rating in excess of 60 percent for hepatitis C between March 4, 2017, and February 5, 2019, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.115, DC 7354 (2019). 3. The December 2007 rating decision denying the application to reopen the claim of service connection for heel spurs is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 4. The evidence received since the December 2007 rating decision is new and material and the claim of entitlement to service connection for a heel disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In September 2018, the Board denied the claim of a higher rating for hepatitis C, as well as the application to reopen the claim of service connection for heel spurs. The Veteran appealed to the Veterans Claims Court. The Court Clerk granted a Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision with regard to the claims listed above, and remanded the case for further development consistent with the JMPR. The case has now been returned to the Board for action consistent with the order. Additionally, in connection with his appeal the Veteran testified at a July 2013 hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Increased Rating for Hepatitis C Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The Veteran’s hepatitis C is rated under DC 7354 for hepatitis C, non-A hepatitis, or non-B hepatitis. The Board will also consider all relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • 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 (40 percent); • 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 (60 percent); or • near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain) (100 percent under DC 7354). Rating Period Between December 11, 2009, and March 4, 2017 Turning to the evidence, the Veteran reported daily fatigue and malaise. In this regard, he testified in December 2011 and July 2013 that he experienced fatigue, a lack of motivation, a lack of energy, shortness of breath, and malaise. Furthermore, a January 2012 VA examination established that hepatitis C manifested through symptoms including daily fatigue and malaise. Accordingly, the medical evidence and lay testimony establish daily fatigue and malaise as a result of hepatitis C. Similarly, the record establishes weight loss. In this regard, a February 2011 medical treatment note revealed that the Veteran demonstrated weight loss as a result of his treatment regimen for hepatitis C. He subsequently testified in December 2011 that he experienced nausea and diarrhea and that his weight dropped from 180 pounds to 163 pounds as a result of treatment. As such, weight loss was shown during this period. The record also demonstrates hepatomegaly. In this regard, a July 2013 treatment record found that the Veteran’s liver was mildly enlarged and hyperechoic. Accordingly, the medical evidence establishes hepatomegaly. Based on the above, a 40 percent rating, but no more, is warranted between December 11, 2009 and March 4, 2017. To this end, the Veteran experienced daily fatigue, malaise, with weight loss and hepatomegaly. However, a 60 percent rating for this period is not warranted. Specifically, the evidence did not show substantial weight loss. While minor and substantial weight loss are not defined, the Veteran reportedly experienced approximately 10 percent weight loss, which the Board finds not to be substantial. Further, while incapacitating episodes were noted, they had a total duration of 2 to 4 weeks. Accordingly, the medical evidence supports a 40 percent rating, but no more, for this period and the appeal is granted to this extent. Rating Period Between March 4, 2017, and February 5, 2019 In a March 4, 2017 VA examination, the Veteran complained of fatigue and muscle aches and was diagnosed with hepatitis C. The examiner found that he exhibited intermittent nausea and vomiting, hepatomegaly, and near-continuous and debilitating fatigue and malaise. The examiner noted that the Veteran had incapacitating episodes for at least 6 weeks as a result of his symptoms, and remarked that his liver condition was moderate in severity. In a subsequent December 2017 medical opinion, the examiner noted that the symptoms noted in the March 2017 VA examination were subjective in nature and not supported by objective findings on examination. Additionally, the examiner was unable to opine as to whether the reported symptoms were due to hepatitis C or due to another active chronic condition as the Veteran had completed treatment for the disorder and his viral load remained undetectable. More recently, April 2018 and February 2019 VA examinations diagnosed hepatitis C and found that the Veteran demonstrated symptoms including daily fatigue and malaise and intermittent nausea, vomiting and right upper quadrant pain. Based on the above, a rating in excess of 60 percent is not warranted between March 4, 2017, and February 5, 2019. In this regard, while near-continuous and debilitating fatigue and malaise were noted in the March 2017 VA examination, the over-all disability picture does not support a 100 percent rating. The March 2017 examiner found that hepatitis C was moderate in severity and noted that the subjectively reported symptoms, to include near-continuous and debilitating fatigue and malaise, were not supported by objective findings on examination. Furthermore, the examiner was unable to opine as to whether the subjectively reported symptoms were caused by the Veteran’s hepatitis C or another chronic condition. Finally, the medical treatment notes of record contemporaneous and subsequent to the March 2017 examination did not establish that hepatitis C was manifested by near-constant debilitating symptoms. Based on the above, the medical evidence does not support a higher rating between March 4, 2017, and February 5, 2019. The Board has considered multiple statements and testimony offered by the Veteran regarding the current severity of his hepatitis C. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to identify a specific level of severity of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s hepatitis C has been provided by the medical personnel who have examined him during the current appeal in conjunction with the evaluations. The medical findings (as provided in the VA examinations and medical treatment notes) directly address the criteria under which his disability is evaluated. Moreover, as the clinicians have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the subjective evidence of complaints of increased symptomatology provided by the Veteran. Consideration has also been given to assigning staged ratings with respect to the Veteran’s hepatitis C. However, at no time during the period in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). New and Material Evidence Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The Veteran was initially denied service connection for heel spurs in May 2004 based on a finding that there was no evidence of record establishing a nexus between heel spurs and service. He was again denied service connection for heel spurs in December 2007 on the basis that the evidence did not show that heel spurs occurred in or were related to service. The evidence of record at the time consisted of service treatment records (STRs) and post-service medical treatment records. He did not appeal that decision and the December 2007 decision became final. The evidence received subsequent to the December 2007 rating decision includes additional post-service medical treatment records diagnosing heel spurs, and documentation from the Social Security Administration (SSA), and testimony offered by the Veteran before a Decision Review Officer in December 2011 and before the undersigned Veterans Law Judge in July 2013 describing in-service complaints of frostbite, which he asserts caused heel spurs. The SSA records are not material. While the records establish a current diagnosis of heel spurs, they provide no new evidence that heel spurs were caused by or otherwise related to service. The medical treatment and SSA records therefore fail to raise a reasonable possibility of substantiating the claim and do not support reopening. However, the Veteran’s December 2011 and July 2013 lay testimony is new and material within the meaning of applicable law and regulations because it is probative of the issue. In this regard, he testified that he experienced frostbite of his foot in service that resulted in foot pain that was continuous since that time. He is competent to report symptoms capable of lay observation, to include foot pain. Similarly, the additional post-service treatment records are new and material within the meaning of applicable law and regulations because they are probative of the issue. In this regard, the Veteran reported in a February 2010 treatment note that he had pain in his bilateral plantar heels and related a past medical history of an in-service stress fracture in his right heel. The lay testimony and medical treatment notes are new as they were not of record prior to the December 2007 rating decision. Moreover, they are material as they relate to the unestablished element of an in-service incurrence of heel spurs. Accordingly, the newly added evidence relates to an unestablished fact necessary to substantiate the claim. As such, the application is granted, and the claim is reopened. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In a February 2010 medical treatment note, the Veteran reported pain in his bilateral plantar heels and noted that he had a past medical history of an in-service stress fracture in his right heel. The Veteran subsequently testified in December 2011 and January 2013 that he suffered frostbite of his foot in service that resulted in foot pain; he asserted that the foot pain had been continuous since his in-service frostbite. Finally, the Veteran was diagnosed with bilateral calcaneal spurs, right heel pain, and bilateral plantar fasciitis in multiple medical treatment notes. However, he was not afforded an examination for his heel spurs, and an opinion was not otherwise rendered as to a potential relationship between heel spurs and service. In light of the lay testimony and medical treatment notes, a remand is necessary to afford him an examination to determine the nature and etiology of any currently present heel spurs. The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private medical treatment records not already of record in the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of heel spurs. The claims file must be made available to the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s heel spurs are etiologically related to service, include exposure to frostbite. In forming the opinions, the examiner should consider the Veteran’s December 2011 and July 2013 testimony, as   well as the February 2010 medical treatment note. The rationale for all opinions must be provided. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.