Citation Nr: 21064135 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-62 743 DATE: October 19, 2021 ORDER Entitlement to service connection for a lumbosacral strain is denied. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected Hepatitis C, is denied. Entitlement to a rating higher than 10 percent since September 22, 2016 for the Hepatitis C is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's claimed lumbosacral strain began during his active military service or is otherwise related or attributable to his service. 2. The Veteran's acquired psychiatric disorder is not caused or aggravated by his service-connected Hepatitis C or otherwise due to his service. 3. During the appeal period, the Veteran's Hepatitis C has not resulted in daily fatigue, malaise, and anorexia, incapacitating episodes, or more severe symptoms. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for lumbosacral strain. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria are not met for entitlement to service connection for an acquired psychiatric disorder, including as secondary to the Hepatitis C. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. Since September 22, 2016, the criteria have not been met for a rating higher than 10 percent for the Hepatitis C. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the National Guard from September 1977 to July 1978 and on active duty from February 1979 to July 1985. This appeal to the Board of Veterans' Appeals (Board) is from May 2013 and December 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a hearing in January 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In June 2020, the Board remanded these claims back to the local Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ) for further development and consideration including especially to obtain all outstanding treatment records relevant to these claims (whether from VA or private providers) and then for a supplemental (addendum) medical opinion concerning whether the Veteran's acquired psychiatric disorder is secondary to (meaning caused or aggravated by) his already determined to be service-connected Hepatitis C and for a VA examination reassessing the severity of his service-connected Hepatitis C. The Board's remand orders where not complied with, but only initially, so the Board again remanded the claims in April 2021. And there since has been the required compliance, certainly the acceptable substantial compliance, with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These chronic diseases (so, again, arthritis included) also may be presumptively service connected if they become manifest to a compensable degree (meaning to a degree of 10 percent or more) within one year of leaving qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Service connection may be granted, as well, on a secondary basis for a disability found to be proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) and (b). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability, either in the way of causation or aggravation. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed in terms of whether complex or simple. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). 1. Entitlement to service connection for a lumbosacral strain The Veteran contends that his low back disability onset during his service. The Veteran has a diagnosis of lumbosacral strain and more recently of arthritis or degenerative disc disease (DDD) of his lumbosacral spine. So, there is no disputing he has this claimed disability. In addition, his service treatment records (STRs) indicate he was hospitalized in May 1985 for almost a month for mechanical low back pain. It was noted that the pain alleviated with bedrest. But he additionally reports experiencing low back pain since his separation from service in 1985. Therefore, resolution of this claim turns on whether the current disability is at least as likely as not related to his documented mechanical low back pain in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). For reasons and bases that will be discussed, the Board finds there is not this required correlation ("nexus"), so this claim ultimately must be denied. In April 2013, a VA examiner noted the Veteran's report of back problems during service and of them continuing since his service. He also, however, reported an intervening ("intercurrent") injury to his back since service, in 1995. He recalled being attacked by a patient and his back resultantly being injured. He explained that he was on bedrest for 2 to 3 weeks. The VA examiner recited a detailed account of the Veteran's complaints of back pain during service and post service and ultimately concluded that it is less likely than not the Veteran's then current back condition was caused by or a result of any injury, event, or illness in service. That VA examiner reasoned that the Veteran's back condition in service resolved, as evidenced by X-rays in 1988 (3 years after his separation from service). It also was noted that he did not complain of residuals effects of the back complaints and had a normal evaluation. This VA examiner additionally pointed out that medical records reveal the Veteran was seen in an Emergency Room (ER) in July 1995 owing to an incident at work. This VA examiner noted that lumbar spine X-rays in 1995, 2000, and 2012 were all normal and that mechanical type back pain or lumbosacral strain are generally transient, self-limited, and respond to rest and medication. This VA examiner explained that different episodes occur de novo, are caused by different activities at different times, and are not related to nor caused by other prior episodes. In April 2015, the Veteran's private physician submitted a letter confirming he had been treated at this doctor's office for the past four years for severe arthritis and back problems. There was not attribution of the arthritis and back problems, however, to the mechanical low back pain the Veteran had during his service. In October 2016, a VA examiner affirmed that the Veteran's low back condition is not due to, was not incurred in, or caused by the complaints/conditions noted during his military service. This VA examiner cited to the same medical records and reiterated the conclusion of the prior April 2013 VA examiner. However, this VA examiner also noted that a VA treatment record in 2014 recorded an acute low back injury from when the Veteran was working in the garden and the progress note states that it was "new onset" (meaning not dating back to his service). This VA examiner also made note of the fact that the private physician in April 2015 indicated the Veteran had back pain, but that was still several decades post service. The VA examiner concluded that a nexus to service, therefore, cannot be established. When considering this collective body of relevant evidence, including the VA examinations and medical opinions mentioned, the Board finds this evidence especially probative, meaning competent and credible, because it is based on an accurate medical history that considers the STRs, post-service treatment records, as well as his lay statements, and provides the required explanation (rationale) containing clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the Veteran contends that a medical relationship exists between his current low back disability and service, including with the mechanical low back pain he had while in service, the Board is mindful that he is a nurse and, therefore, has some medical knowledge and training. He also is competent to testify regarding his personal experience of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Indeed, even lay witnesses, in some circumstances, may opine on questions of diagnosis and etiology when the condition being claimed is simply or readily observable and lends itself to lay comment regarding its origins. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). Here, though, arthritis and DDD of the lumbosacral spine are not merely simple conditions, rather, medically complex, so, ultimately, the Veteran's assertions that he believes his current low back condition onset during his service in the way or guise of the mechanical low back pain mentioned is less persuasive than the opinions of the April 2013 and October 2016 VA compensation examiners. These VA examiners reviewed the available medical documents and determined that the Veteran's lumbar spine X-rays were normal 3 years after his service and that he had noteworthy injuries to his back after service. Indeed, the Board sees that the on-the-job back injury in July 1995 apparently was so significant that the Veteran, himself, attributed his then current back pain to that intercurrent injury when seeking treatment in the aftermath in an ER. The Board also sees that neither the Veteran nor the physicians commenting on his behalf related his back pain to the mechanical low back pain he had in service and/or reconciled that intervening X-rays had revealed a normal spine. This is significant because, when seen for evaluation and treatment, it behooved him to give the most accurate recitation of his medical history to, in turn, receive the most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Because of the specificity of the statements, they are assigned more probative weight than the more recent statements made for compensation purposes. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, the appeal of this claim must be denied. 2. Entitlement to service connection for an acquired psychiatric disorder, including as secondary to service-connected Hepatitis C The Veteran also asserts that his acquire psychiatric disorder was either caused or is aggravated by his service-connected Hepatitis C. Thus, this claim is entirely rooted in the notion of secondary service connection. As already explained, to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability either by way of causation or aggravation. Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the evidence shows the Veteran has received various diagnoses of depressive disorder not otherwise specified (NOS), marijuana and cocaine dependence in remission, borderline personality disorder, substance-induced mood disorder, personality disorder NOS, anxiety NOS, and unspecified anxiety disorder. See December 2020 VA examination. He also previously has established his entitlement to service connection for Hepatitis C. Therefore, the controlling issue concerning this claim is whether his service-connected Hepatitis C caused or is aggravating his mental disorders. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The medical records reveal the Veteran was referred for psychiatric treatment out of his expressed concern about his diagnosis of Hepatitis C. A March 2000 VA examiner noted the Veteran had expressed the belief that the recurrent symptoms he had experienced were associated with his Hepatitis C; he claimed that hearing this diagnosis has had a strong, negative effect on him, which he described as leading to him "freaking out." However, the VA examiner observed that, although the Veteran's self-report during a clinical interview was consistent with the referral information, which identified poor adjustment to the Hepatitis C diagnosis as his primary complaint, a review of his electronic records from other VA facilities indicates that his self-report was not entirely honest. The VA examiner observed the Veteran stated that he was informed of the Hepatitis C diagnosis in January 2000; however, records in 1997 indicate he had received this diagnosis 2 years earlier. The VA examiner thus concluded the Veteran was aware of this diagnosis for 5 years prior to that January 2000 examination and his self-reported recent change in his behavior must not be due to difficulty in coping with new diagnosis. This VA examiner also pointed out the Veteran did not fully disclose his prior history of psychiatric admissions or substance abuse records, which include alcohol dependence, cocaine dependence, borderline personality disorder, and antisocial personality disorder. This VA examiner surmised the Veteran should be confronted with his misrepresentation about his medical history and treatment since his history of substance abuse may have a direct effect on his medical status. In September 2016, the Veteran's treating VA Psychiatrist opined that in the past the Veteran tested positive for the Hepatitis C antibody and that it is more likely than not that the diagnosis brought on an anxiety disorder. The Veteran had another VA examination in December 2020. The December 2020 VA examiner opined that the Veteran's acquired psychiatric disorder is not proximately due to or the result of his service-connected Hepatitis C. The VA examiner reasoned that an exact etiology for the Veteran's history of mental disorders is not clear. It was noted that, for the personality disorder diagnoses, these are rooted in childhood/adolescence. As for his substance-induced mental disorders, these etiologies are the substance use (i.e., mood disorder symptoms due to chronic substance use and/or abuse). This VA examiner further noted that, regarding the symptoms of anxiety and depression, they are mostly multifactorial, and in this case specifically the etiology is not clear. The December 2020 VA examiner then goes on to point out the Veteran's record shows that his symptoms were often characterized as reactions to psychosocial stressors and disordered characterological traits (i.e., personality disorder), often limit coping during periods of stress, which can compound symptoms of depression and/or anxiety. Additionally, it was noted that he has been diagnosed with multiple substance use disorders, anxiety, and depression and mental disorder symptoms are noted to be both part of longstanding and varied psychosocial stressors and exacerbated and/or caused by substance use. This examiner also noted that the Veteran's Hepatitis C had resolved and concluded that, although his anxiety may have been acutely exacerbated by his Hepatitis C diagnosis or treatment, there is insufficient evidence supporting a permanent aggravation. The VA examiner noted that the Veteran's mental health disorders were made in the context of psychosocial stressors without reference to Hepatitis C. This VA examiner concluded that it is less likely than not the Veteran has an acquired psychiatric disorder that is due to or the result of his Hepatitis C. On review of these medical opinions longitudinally, the Board finds the March 2000 VA examiner did not rule out an association between the Veteran's acquired psychiatric disorder and his Hepatitis C, but rather requested further consultation with the Veteran. Second, while the Board acknowledges the September 2016 positive nexus opinion, the Board finds that it lacks probative value, however, since this opinion provides no rationale or explanation for the conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinion containing only data and conclusions not entitled to any weight). The Board finds that the VA examiner's opinion in December 2020 is probative. The opinion was based on examination of the Veteran and comprehensive review of the claims file, and the opinion is generally consistent with most of the other evidence of record. That said, while the December 2020 VA examiner ultimately provided a negative nexus statement, he applied an incorrect legal standard for secondary aggravation, i.e., permanent aggravation. Under Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019), permanent aggravation or worsening of a non-service-connected disability by a service-connected disability is not required since any increase in disability qualifies no matter how incremental. However, one must also remember that secondary service connection on the basis of aggravation only may be granted when there is an increase in severity of the nonservice-connected condition beyond a medically established baseline due to the service-connected disability. As importantly, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995). This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. In the present claim, there is no evidence of record establishing aggravation in definitive terms. Additionally, as the VA examiner indicated, the Veteran's Hepatitis C has resolved. Furthermore, even if the Board were to consider the December 2020 VA examiner's opinion that the Veteran's anxiety may have been acutely exacerbated by the Hepatitis C diagnosis or treatment under the correct standard, the use of the term "may" regarding exacerbation is too speculative upon which to grant service connection. Rather, looking at the totality of the opinion, the December 2020 VA examiner surmised the Veteran's stressors for his psychiatric disorders were psychosocial and not associated with his Hepatitis C that had resolved. As there is no persuasive evidence that this Veteran's acquired psychiatric disorder was caused or aggravated by his service and/or a service-connected disability, namely, his Hepatitis C, service connection is not warranted. 3. Entitlement to a rating higher than 10 percent for the Hepatitis C since September 22, 2016 Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. The Veteran's Hepatitis C is evaluated under DC 7354. DC 7354 provides for a 0 percent (noncompensable) rating when non symptomatic. 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; and a 100 percent rating requires near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, DC 7354. Note (1) in DC 7354 directs that sequelae, such as cirrhosis or malignancy of the liver, should be evaluated under an appropriate DC, but the same signs and symptoms should not be used as the basis for evaluation under DC 7354 and under a DC for sequelae. Note (2) to DC 7354 provides that, for purposes of evaluating conditions under DC 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. When there is a question as to which of 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's Hepatitis C was noncompensable when he filed for an increase in rating in September 2016. In a December 2016 rating decision, based on the results of an October 2016 VA examination, his disability rating was increased to 10 percent effective September 22, 2016, the date he had filed for a higher rating for this service-connected disability. He contends that his Hepatitis C warrants an even higher rating and has throughout the entire pendency of this appeal. The October 2016 VA examiner recorded that the Veteran had intermittent fatigue and nausea attributed to his Hepatitis C. The VA examiner indicated the Veteran had intermittent symptoms associated with this disease including fatigue and nausea. Notably, this VA examiner did not review the Veteran's claims file as part of his reassessment of the severity of this disability. Precedent cases have held that review of the claims file is not, in and of itself, determinative of the probative value of an examination (since, as an example, a credible history of the disability at issue may be obtained in a variety of ways including based on the Veteran's self-recitation of the history). See Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Here, though, notably, the Veteran's rating increase appears to have been based on an inadequate VA examination that, at least in part, did not fully account for the history of his disability including March 2006 and April 2010 VA treatment notes conversely indicating his Hepatitis C had resolved. A September 2020 VA examiner since reviewed the Veteran's claims file to try and resolve this conflict and concluded he did not have any incapacitating episodes with symptoms of fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain due to liver conditions during the past 12 months. It was also noted that a March 2, 2006 VA treatment record indicated his Hepatitis C disease had resolved. The Board therefore finds that a rating greater than 10 percent for the Hepatitis C is not warranted. The Veteran's evaluation and treatment records during the period on appeal mostly indicate the Hepatitis C virus was eradicated, at least does not involve active infection resulting in any consequent symptoms of significance. In addition, the September 2020 VA examiner denied the presence of Hepatitis C symptoms. And, absent daily fatigue, malaise, and anorexia, incapacitating episodes, or more severe symptoms, a higher rating simply is not warranted. The Board sees the Veteran has reported experiencing near constant and debilitating fatigue, malaise, and weakness, daily right upper quadrant pain, and incapacitating episodes of 6 weeks or more in the prior 12 months in his December 2016 Notice of Disagreement (NOD). However, the Board finds the determinations of the September 2020 VA examiner, made after review of the Veteran's records and statements and a physical examination to be significantly more probative than the Veteran's lay assertions, which are not credible given the persuasive medical evidence. As such, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. See, e.g., English v. Wilkie, 30 Vet. App. 347 (2018). In this regard, even considering the Veteran's occupation as a nurse, he does not have medical training to attribute fatigue, malaise, or weakness to Hepatitis C as opposed to his other conditions. Furthermore, Note (2) in DC 7354 states that an "incapacitating episode" means 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 Veteran's treatment records do not indicate any incapacitating episodes requiring bed rest and treatment by a physician under prescription during the review period on appeal. It would be likely that such bed rest and treatment would be noted in the common course of treatment records discussing Hepatitis C if this was a prescribed modality of treatment, but there is no such indication. Thus, the Board does not find that the Veteran experienced near constant and debilitating fatigue, malaise, and weakness or incapacitating episodes due to Hepatitis C during the period on appeal. As such, the preponderance of the evidence shows that the Veteran's Hepatitis C has not resulted in daily fatigue, malaise, and anorexia, incapacitating episodes, or more severe symptoms. Therefore, the benefit-of-the-doubt doctrine is not applicable and a rating exceeding 10 percent for his Hepatitis C is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.