Citation Nr: 21000884 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-48 883 DATE: January 6, 2021 ORDER The claim for a disability rating higher than 20 percent for hepatitis C is denied. FINDING OF FACT The Veteran’s hepatitis C does not involve or approximate most of the following symptomatology: 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. CONCLUSION OF LAW The criteria are not met for a rating in excess of 20 percent for hepatitis C. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7354 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from October 1970 to October 1973, including service during the Vietnam War Era and in the occupational capacity as combat engineer. In October 2018, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge (VLJ), the transcript of which is of record. In June 2020, the Board remanded this case, for purpose of obtaining updated treatment records and to afford the Veteran a VA examination to address the current severity of his hepatitis C. Additional medical records were obtained. The Veteran was afforded a VA examination in August 2020 to evaluate the severity of his hepatitis C. The examination is adequate because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because it describes his hepatitis C in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). There was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In a September 2020 Decision Review Officer (DRO) decision, the Agency of Original Jurisdiction (AOJ) granted the claim for service connection for cirrhosis associated with hepatitis C, with a 10 percent rating effective August 25, 2020. The initial disability rating and effective date of service connection were not contested and so does not further present a matter on appeal. The claim for an increased rating for hepatitis C is denied. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Under Diagnostic Code 7354, a noncompensable rating is assigned for asymptomatic HCV. A 10 percent rating requires 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 requires 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 requires 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 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. A 100 percent rating requires serologic evidence of HCV infection and the following signs and symptoms due to the HCV infection: near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). According to Note (1) in this Diagnostic Code, 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. This would violate VA’s anti-pyramiding regulation. See 38 C.F.R. § 4.14. Note (2) provides that 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. Based on review of the evidence, the criteria for increased rating for hepatitis C are not met. The claim under consideration was filed on December 4, 2014, and the Board’s discussion of the medical evidence and findings continues from that timeframe onwards. There was an examination done approximately at that time period, the September 2013 VA examination which indicated hepatitis C in remission. He reported symptoms of right upper quadrant pain on most days a dull pain and mild cramp, with daily fatigue worse in the afternoons. Continuous medication was not required. Objectively notated symptoms were fatigue, right upper quadrant pain, condition required dietary restrictions. The Veteran was not a liver transplant candidate. There had not been an injury to the liver. There was a functional impact of the condition “mildly impair[ed]” sedentary and physical work. The Veteran underwent a second VA examination in April 2015. The examiner stated that his HCV viral load was negative on multiple laboratory tests and that the virus was considered eradicated. His April 2015 liver function test (LFT) was normal. The Veteran had not had any incapacitating episodes (as characteristically defined under that criteria) due to HCV during the past 12 months. The impact of the Veteran’s liver conditions was that he was “good for 4 hours in the morning but after that he got real fatigued.” He thought this was due to liver disease. He “does not think his liver HCV and after effects would interfer[e] with a sedentary job.” According to the examiner, “[i]t is not clear that the Veteran’s complaint of fatigue and r[ight] upper quadrant pain is entirely related to his history of hepatitis C virus given his normal appearing liver on abdominal CT scan, normal LFTs and no active disease for several years. The Veteran has not had complaint of active r[ight] u[pper] q[uadrant] pain documented in progress notes since September 2011. He recently quit long-term smoking and is using CPAP for sleep apnea.” The Veteran underwent VA examination in August 2020, the diagnoses at out were hepatitis C and cirrhosis of the liver. The condition was now in remission. The current symptoms were episodes (at least twice a week for 20-30 seconds) to the right upper abdominal quadrant dull mild pain, and daily fatigue, and no other symptoms or complications reported. Continuous medication was not required for control. The objective signs and symptoms attributable to chronic or infections liver disease consisted of daily fatigue and intermittent right upper quadrant pain. There were not incapacitating episodes. There was no indication of any residual scar from the condition as being present. The Veteran was not nor had been a liver transplant candidate. As to functional impact, the Veteran could not do strenuous type of work like extensive lifting/carrying more than 25 lbs. at work secondary to being easily fatigued. There was apparently the lack of capacity for prolonged walking or standing secondary to being easily fatigued. The examiner stated that there was no viral load detected on laboratory testing from October 2018. The examiner found that the Veteran’s cirrhosis caused daily abdominal pain and daily malaise. In a November 2020 statement, the Veteran described having had suspected liver damage and some interfamilial tensions due to the routine medical issues associated with his hepatitis and its symptoms. He believed his HCV was still active. In other correspondence the Veteran indicated that continuously having the condition and its symptoms had some ramifications for his personal life. At the October 2018 Board hearing, the Veteran testified about his daily fatigue. He stated that after approximately 2:00pm, he would lay down. He did not report the presence of any incapacitating where bed rest was actually required due to a period of acute signs and symptoms. Further, he did not state, and the record does not show, that he had treatment by a physician for a period of acute signs and symptoms. He stated that his weight fluctuated, and recently he had been gaining weight because he was eating more. He testified that approximately two mornings a week, he vomited when he woke up. He stated that he had right upper quadrant pain every day and described it as “more annoying than painful,” and that on a scale of 0 (not painful) to 10 (most painful), it was a four. He stated that he had also been diagnosed with cirrhosis of the liver. The VA medical records indicate that on July 2016 laboratory testing report the test results were negative for the presence of HCV. On an October 2018 consult it was indicated agin that after a liver biopsy suggestive of fibrosis in the past, the Veteran was asymptomatic, and had not had history of abdominal swelling, pain, confusion. Subsequently notated in October 2018, there was found HCV reactivity, however no viral load detected. Applying the rating criteria, it appears that key requirements for the next higher 40 percent evaluation are not during the appeal period. While there was daily fatigue and intermittent right upper quadrant pain, for the most part that was the extent of symptomatology. On at least one VA examination the condition was in total remission. The Veteran has malaise, but this was specifically attributed to his cirrhosis of the liver, which has been assigned a separate rating. Therefore, it may not be compensated for again in his rating for HCV. 38 C.F.R. § 4.14. The 40 percent criteria require “daily fatigue, malaise, and anorexia,” and the medical and lay evidence of record does not show anorexia. The Veteran testified that he had gained weight. He did not have hepatomegaly. Additionally, the Veteran did not have incapacitating episodes as defined by regulation, as he did not have periods of acute signs and symptoms “severe enough to require bed rest.” “Require” is defined as “to demand as necessary or essential: to have a compelling need for.” Merriam-Webster’s Collegiate Dictionary 1058 (11th ed. 2012). Although the Veteran testified that he had to lay down after 2:00pm, this was a choice and not a compulsion. Furthermore, the definition of “incapacitating episode” requires both bed rest “and” treatment by a physician for the period of acute signs and symptoms that require the bed rest. The medical evidence of record does not show that the Veteran experienced a period of acute signs and symptoms that required treatment from a physician at all. The 40 percent criteria require that the episodes have a total duration of least four, but less than six weeks. HCV is listed in the Veteran’s medical history, and he completed treatment in 2005. It follows that preponderance of the medical evidence does not demonstrate or approximate what warrants a 40 percent rating. See Diagnostic Code 7354. In a December 2020 Appellant’s Post-Remand Brief, the Veteran’s representative made a generic assertion that the Veteran’s “service-connected condition negatively impacts his earning potential,” and raised extraschedular consideration under 38 C.F.R. § 3.321. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”); Morgan v. Wilkie, 31 Vet. App. 162 (2019) (holding that the “VA’s duty to maximize benefits requires it first to exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered,” inclusive of the availability of service connection for disability claimed secondary to the service-connected disability). In this case, the schedular rating for the Veteran’s HCV is adequate because it contemplates all of his HCV manifestations. Specifically, fatigue and right upper quadrant pain. His malaise and abdominal pain were specifically contemplated by the rating assigned for his cirrhosis in the rating decision that granted service connection for that condition. Because the rating criteria in Diagnostic Code 7354 are adequate, referral for extraschedular consideration is not warranted. (Continued on the next page)   For these reasons, the preponderance of the evidence weighs against the claim for increase. Under these circumstances, VA’s benefit-of-the-doubt doctrine does not apply, and the claim is being denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jason Lyons, 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.