Citation Nr: 21062198
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 12-12 833
DATE:  October 6, 2021

ORDER

Entitlement to an initial rating in excess of 20 percent for hepatitis C is denied.

FINDING OF FACT

The Veteran's hepatitis C was not manifested by 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 for an initial rating in excess of 20 percent for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7354.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from May 1969 to May 1971. The Veteran died in January 2014. The appellant filed a request to be substituted as the surviving spouse. In February 2018, the appellant was deemed to be a valid substitute claimant for the purposes of processing the Veteran's appeal to completion.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

The Veteran's service-connected hepatitis C is rated at 20 percent from June 8, 2004 under Diagnostic Code (DC) 7354. 38 C.F.R. § 4.114, DC 7354. DC 7354 provides various rating criteria for service-connected hepatitis C manifested by serologic evidence of hepatitis C infection and related signs and symptoms due to such infection. Id.

Under DC 7354, a 20 percent disability rating is warranted for 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. Id. A 40 percent disability rating 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. Id. A 60 percent disability rating 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. Id. Finally, a maximum schedular 100 percent disability rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id.

Sequelae, such as cirrhosis or malignancy of the liver, are to be rated under an appropriate DC, but the same signs and symptoms are not to be used as the basis for rating under DC 7354 and under a DC for sequelae. Id.; see also 38 C.F.R. § 4.14. Additionally, an incapacitating episode is defined as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." 38 C.F.R. § 4.114, DC 7354. 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; and 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. 38 C.F.R. § 4.112. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy, while "baseline weight" means the average weight for the two-year-period preceding onset of the disease. Id. Further, in light of the conjunctive "and" in the various rating criteria listed under DC 7354, all criteria must be met to establish entitlement to particular percent rating. 

Entitlement to an initial rating in excess of 20 percent for hepatitis C

In the September 2010 rating decision currently on appeal, the Veteran was granted service connection and assigned a noncompensable rating effective June 8, 2004. In a March 2012 rating decision, the Veteran was granted an initial 20 percent rating, effective June 8, 2004. The issue was remanded in Board decisions from February 2014, July 2017, and March 2021 for additional development. 

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 20 percent for hepatitis C. The reasons follow.

Procedural Contentions 

In a February 2017 VA Form 646, the appellant's representative contended that the Veteran was entitled to secondary service connection for complication of liver cirrhosis from June 8, 2004. Similar contentions in statements from February 2011 and May 2012 were also submitted. The Veteran was granted service connection for cirrhosis of the liver with a 10 percent rating effective February 24, 2005, and a 30 percent rating from August 20, 2010. A claim for an increased rating for this disability is not part of the current appeal, as it was not a claim that was pending at the time of the Veteran's death. 

In March 2021, the Board remanded the claim for increase for hep C to obtain any additional records from the Veteran's lifetime. However, in a July 2016 statement, the appellant's representative stated that all available records had been submitted. In a June 2021 statement, the appellant's representative stated that they had no additional evidence regarding the Veteran's appeal. In a September 2021 statement, the appellant's representative stated that they had no further argument and the appellant wished for the appeal to be considered based upon the evidence of record. Accordingly, the Board finds that the March 2021 Board remand directives have been substantively complied with, and analysis of the appeal may proceed. 

In the July 2016 statement, the appellant's representative contended that the March 9, 2005 rating decision referred to a VA examination that was not included within the record. The rating decision in question states that it relied upon VA examinations from December 8, 2004 and December 14, 2004. The Board notes that both referenced examinations are contained within the record. See VBMS entry with document type, "VA Examination," receipt date 12/08/2004, at p.5, and VBMS entry with document type, "VA Examination," receipt date 12/14/2004.

In a November 2013 statement, the appellant's representative contended that August 2010 VA examination was inadequate for failing to consider the duration of the Veteran's symptoms over a 12-month period. The Veteran received a VA examination in October 2010 that discussed the duration of his symptoms and noted that the Veteran did not have incapacitating episodes during the past 12 months. 

In the May 2012 VA Form 9, Appeal to the Board, the Veteran contended that the fact that he was on the liver transplant waiting list entitled him to an increased rating. However, Note 1 of DC 7354 instructs that sequelae, such as cirrhosis or malignancy of the liver, must be evaluated under an appropriate DC, but such an evaluation must not use the same signs and symptoms as the basis for evaluation under DC 7354 and under a different DC for sequelae. The Board notes that the Veteran was granted a 10 percent rating effective February 24, 2005, and a 30 percent rating from August 20, 2010 for service-connected cirrhosis of the liver. 

In light of the foregoing, the Board finds that VA has fulfilled the duty to assist. 

Analysis 

The evidence shows that the Veteran's hepatitis C was manifested with malaise, fatigue, arthralgia and weight loss, but did not result in 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, to warrant a 40 percent rating. At worst, the Veteran's hepatitis was manifested with malaise, fatigue, arthralgia and weight loss, but did not result in anorexia, hepatomegaly or incapacitating episodes, which are symptoms necessary to warrant a 40 percent rating under DC 7354.

The evidence supports that the Veteran experienced fatigue, malaise, arthralgia, nausea, and right upper quadrant pain. For example, in the December 2004 VA examination report, the examiner documented that the Veteran experienced chronic fatigue and severe right upper quadrant pain. In a July 2005 private treatment record, Dr. James E. Dowd noted that the Veteran experienced fatigue. In an August 2008 private treatment record from the Henry Ford Hospital & Medical Centers Department of Internal Medicine, Dr. Dilip K. Moonka noted that the Veteran experienced fatigue, malaise, and arthralgia, but stated the Veteran denied nausea. In a December 2010 private treatment record, Dr. Rabbi Salimi noted that the Veteran experienced fatigue and upper right quadrant pain. In the October 2011 VA examination report, the examiner noted that the Veteran experienced fatigue, arthralgia, and nausea, but did not experience right upper quadrant pain. 

The above-described symptoms are against a finding that the Veteran experienced hepatomegaly. For example, in private treatment records from April 2005, May 2005, July 2005 and August 2005, Dr. Enid Vidal Rivera noted that the Veteran showed no hepatosplenomegaly. In private medical records from May 2005 and December 2007, Dr. Salimi stated that the Veteran had no hepatosplenomegaly. After private diagnostic testing from Regional Medical Imaging in September 2008 and June 2009, Dr. Jeffrey S. Mitchinson noted that in comparison to previous studies, the Veteran was showing borderline splenomegaly, but that he otherwise experienced only hemangioma. In an October 2011 VA examination report, when asked if the Veteran currently had signs or symptoms attributable to chronic or infectious liver diseases, the examiner left the checkbox for hepatomegaly blank, which is evidence that the Veteran was not found to have hepatomegaly at that time. In an August 2012 private treatment record from the Henry Ford Health System, the Veteran underwent radiologic examination and while the liver was examined, no hepatomegaly was documented. This evidence weighs against a finding of hepatomegaly. 

Although the Veteran experienced significant fluctuations in weight, his treatment providers attributed his weight changes to factors other than anorexia. In a June 2005 private treatment record from the Arthritis Institute of Medicine, Dr. Dowd noted that the Veteran experienced a 60 pound weight loss. In a July 2007 private treatment record, Dr. Dowd wrote that the Veteran did not experience either weight gain or weight loss in excess of 10 pounds. In a June 2008 private treatment record, Dr. Moonka stated that the Veteran's weight was stable. In an August 2008 private treatment record, Dr. Moonka wrote the Veteran underwent combination therapy for 10 months, resulting in 70 pounds of weight loss and arthralgia. This evidence shows that the Veteran's weight loss is not attributed to anorexia and is, instead, due to combination therapy associated with cancer treatment (a disability for which the Veteran was service connected). In the October 2011 VA examination report, when asked if the Veteran currently had signs or symptoms attributable to chronic or infectious liver diseases, the examiner left the checkbox for anorexia blank, which is evidence that the Veteran was not found to have anorexia at that time. In an August 2012 record, Dr. Moonka noted that the Veteran denied experiencing weight loss. In a January 2013 VA treatment record, the Veteran was counseled regarding the health risks of his ongoing obesity, and he refused to be moved or referred to a weight loss program. This evidence also weighs against a finding that the Veteran experienced anorexia. 

As mentioned above, in light of the conjunctive "and" in the various rating criteria listed under DC 7354, all criteria must be met to establish entitlement to a particular percent rating. Here, while the Veteran experienced fatigue and malaise, the preponderance of the evidence is against a finding that he experienced anorexia and did not experience hepatomegaly. As the 40 percent rating criteria requires both anorexia and hepatomegaly, and the Veteran was found to have neither of these symptoms, the evidence weighs against an increased rating under DC 7354.

The record also does not support that the Veteran experienced incapacitating episodes to warrant a 40 percent rating under DC 7354. For example, at the December 2004 VA examination, the Veteran reported that he could attend to his simple daily activities, could climb one flight of stairs, and could walk up to two blocks. Additionally, although in December 2010, Dr. Salimi reported that the Veteran had difficulty fulfilling his regular duties, Dr. Salimi did not prescribe bed rest to the Veteran. In the October 2011 VA examination report, the examiner stated that the Veteran did not experience incapacitating episodes for the previous 12 months. The Board notes that according to DC 7354 Note 2, for purposes of evaluating conditions under this DC, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Thus, to the extent that the Veteran experienced some of the schedular symptoms of incapacitating episodes, such as fatigue, malaise, nausea, arthralgia, and right upper quadrant pain, they do not support a finding that the Veteran experienced incapacitating episodes to warrant a 40 percent rating under DC 7354. 

Substantive Contentions

In a May 2013 VA Form 646, the Veteran's representative contended that the Veteran's steatohepatitis, chronic portal inflammation, severe fibrosis, lower quadrant pain, borderline splenomegaly, hemangioma, and diffuse fatty changes of the liver entitled the Veteran to a 40 percent rating. However, these symptoms do not constitute evidence of 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, which are the criteria for a 40 percent rating under DC 7354. Accordingly, this evidence does not support a 40 percent rating for hepatitis C. 

In the July 2016 statement, the appellant's representative contended that that Veteran's weight loss due to medication entitled him to an increased rating. However, the criteria under DC 7354 provide that an increased rating due to weight loss can be granted only when the weight loss is due to anorexia and accompanied by hepatomegaly. In this case, the regular medical examinations and diagnostic tests over a period of several years showed that the Veteran did not experience hepatomegaly, and the record does not support that the Veteran's weight loss was due to anorexia versus combination therapy. 

In sum, the preponderance of the evidence is against entitlement to an initial disability rating in excess of 20 percent for hepatitis C. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the claim for an increased initial rating for hepatitis C is denied.

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Husain, 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.