Citation Nr: 21061295 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-50 012 DATE: October 1, 2021 ORDER Entitlement to a rating in excess of 40 percent for hepatitis C is denied. A total disability rating based upon individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's hepatitis C has been manifested by daily fatigue, intermittent nausea, bodily weakness, right upper quadrant pain, near constant debilitating malaise, and hepatomegaly without substantial weight loss or incapacitating episodes having a total duration of at least six weeks during the past 12-month period. 2. The Veteran's service-connected hepatitis C, his only service connected disability, does not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for hepatitis C are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.14.14, 4.112, 4.114, Diagnostic Code 7354. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1972 to December 1973. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In October 2018, the Board denied the Veteran's claims of increased rating and TDIU. The Veteran subsequently appealed that decision to the Court of Appeals for Veterans Claims (Court); and in September 2019, the parties filed a Joint Motion for Remand (JMR) which was granted by the Court in a September 2019 Order. The Board remanded the claims for additional development in March 2020 in order obtain outstanding private and VA treatment records, to translate medical treatment records, and to afford the Veteran a new VA examination. Additional VA treatment records were obtained, private treatment records were obtained, the Veteran underwent additional VA examinations in April 2020, and translation of records was also completed. The Board again remanded the claims in December 2020 for a supplemental statement of the case. The Board determines that there has been substantial compliance with its previous remands. In an April 2021 submission, the Veteran's attorney requested a 60 day extension of time to submit additional evidence and argument. The Board granted this extension of time was granted in June 2021. This requested extension period has expired and additional evidence or argument was not received. 1. Entitlement to a rating in excess of 40 percent for hepatitis C is denied. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All liver diseases are evaluated under the schedule for rating disorders of the digestive system. 38 C.F.R. § 4.114. Hepatitis C without cirrhosis is rated under Diagnostic Code 7354. Any sequelae, such as cirrhosis, is evaluated separately under Diagnostic Code 7312. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (1). Under Diagnostic code 7354, a 40 percent rating is assigned 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. Here, the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight sustained for three months or longer. See 38 C.F.R. § 4.112. "Baseline weight" is the average weight for the two-year period preceding onset of the disease. Id. A 60 percent rating is assigned 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 term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. See 38 C.F.R. § 4.112. A total rating is assigned for 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. Given the conjunctive structure of the language used in Diagnostic Code 7354, to prevail, the evidence must establish that the Veteran's hepatitis C results in (i) daily fatigue, malaise, and anorexia with substantial weight loss (or other indication of malnutrition) and hepatomegaly, or (ii) 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. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); see also Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009) (comparing the successive nature of Diagnostic Code 7913 for diabetes mellitus with the non-successive Diagnostic Code 7903 for hypothyroidism). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. Here, the Veteran's hepatitis C has been manifested by complaints of intermittent fatigue, nausea, arthralgia, and upper right quadrant pain and hepatomegaly but has not resulted in incapacitating episodes or anorexia with substantial weight loss (or other indication of malnutrition). See, e.g., VA examinations (February 2015; December 2015; April 2020) and VA treatment record (May 5, 2017) (showing hepatomegaly). Historically, the Veteran was treated for hepatitis C in 2005. See, e.g., VA treatment record (June 21, 2017). Current records affirmatively show that he has not experienced anorexia with substantial weight loss (or other indication of malnutrition). On the contrary, the evidence shows no abnormal weight loss and that treatment providers have advised the Veteran to lose weight. See VA treatment record (November 16, 2017) (regarding recommended weight loss); see also VA treatment records (September 6, 2012; October 27, 2017) (showing that the Veteran's weight has ranged from 211 to 214 pounds); see also VA treatment records (February 5, 2020) (showing that the Veteran had no significant weight gain or loss during the past year). Absent evidence of anorexia or substantial weight loss, a 60 percent is only warranted if the evidence shows that the Veteran's hepatitis C causes incapacitating episodes. While the Veteran's representative reported that his hepatitis C causes incapacitating episodes of fatigue, the evidence does not establish that the Veteran suffers incapacitating episodes for purposes of evaluating conditions under Diagnostic Code 7354, that is, episodes severe enough to require bed rest and treatment by a physician. See Appellant Brief (February 18, 2020). In this regard, the February 2015, December 2015, and April 2020 VA examination reports show that the Veteran does not suffer incapacitating episodes. Critically, VA treatment records show that the Veteran denied symptoms such as fatigue and are silent as to any no instances of severe enough to require bed rest and treatment by a physician. See VA treatment record (October 16, 2017) (showing that the Veteran denies fatigue); see also VA treatment records (January 13, 2020) (showing that the Veteran is negative for weakness or fatigue). As a whole, the lay and medical evidence shows an isolated report of incapacitating episodes from the Veteran's representative, that the Veteran expressly denied fatigue for the purpose of treatment, and that VA examiners found that the Veteran does not suffer incapacitating episodes. Moreover, the Board finds that the Veteran's reports to treatment providers and the evaluation of symptoms by treatment providers and VA examiners are more probative that an isolated statement from the Veteran's representative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). Accordingly, the preponderance of evidence shows that the Veteran has not experienced incapacitating episodes for purposes of evaluating conditions under Diagnostic Code 7354. The Veteran's belief that he is entitled to higher ratings for his hepatitis C is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to higher ratings. The Board has also considered whether further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected hepatitis C; however, the Board finds that his symptomatology referable to such disability has been stable throughout each period on appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. 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). In sum, as the evidence shows that the Veteran's hepatis C does not manifest with anorexia with substantial weight loss (or other indication of malnutrition) or incapacitating episodes, the next higher rating, a 60 percent is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to an increased rating for hepatitis C. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. A TDIU is denied. The Board finds the Veteran's service-connected hepatitis C, his only service-connected disability, is not so severe as to preclude him from obtaining and retaining substantially gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Under the applicable regulations, TDIU may be granted when it is established that the service-connected disabilities are so severe as to prevent securing or following substantially gainful employment. If there are two or more service-connected disabilities, there must be at least one disability rated 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is service connected for hepatitis C and rated as 40 percent disabling. The schedular criteria for a TDIU are therefore not met. The remaining question is whether the Veteran's service-connected disability renders him unemployable. The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is in itself recognition that the disability makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the evidence shows that the Veteran was treated for hepatitis C in 2005, during which time he described difficulty sleeping due to anxiety. See Statement (December 9, 2014). During the pendency of the appeal, as detailed above, the Veteran's hepatitis C has manifested by hepatomegaly and complaints of fatigue, nausea, arthralgia, and upper right quadrant pain; but has not resulted in incapacitating episodes or anorexia with substantial weight loss (or other indication of malnutrition). In June 2015, the Veteran resigned from his job as a laborer: citing health reasons without additional detail. See Resignation letter (June 22, 2015). Thereafter, he filed a claim for a TDIU, explaining that his current and claimed disabilities prevent him from working. See VA Form 8940 (July 29, 2015). In evaluating entitlement to a TDIU, the Board can only consider the impact of the Veteran's service-connected hepatitis C, as service connection is not in effect for any other disability. The evidence does not show that the Veteran's hepatitis C was so severe as to preclude him from obtaining and retaining substantially gainful employment consistent with his high school education and prior work as a laborer. Id. Significantly, the Veteran retained employment throughout his hepatitis C treatment in 2005. See, e.g., Statement (December 9, 2014). Since the Veteran filed the 2015 claim on appeal, the February 2015, December 2015, and April 2020 VA examiners agreed that the Veteran's hepatitis C has not manifested by signs or symptoms that would impair his ability to work. The April 2020 VA examiner note that no restrictions for job activities was required. Before and after the Veteran's attorney reported that he experiences fatigue in his October 2017 substantive appeal, the Veteran denied severe symptoms such as fatigue to treatment providers. See, e.g., VA treatment record (June 21, 2017) (showing that the Veteran reported that he feels fine; suffers no new complaints or worsening; and expressly denied weight loss, loss of appetite, fever, chills, and fatigue); (October 16, 2017) (showing that the Veteran denies fatigue); (January 13, 2020) (showing that the Veteran is negative for weakness or fatigue). Based on the evidence of record, the Board finds that the service-connected hepatitis C has not diminished the Veteran's mental or physical capacity so as to preclude him from obtaining and retaining substantially gainful employment consistent with his high school education and prior work as a laborer. Accordingly, the evidence shows that a TDIU is not warranted and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.