Citation Nr: 21066996 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-40 075A DATE: November 3, 2021 ORDER Entitlement to an increased disability rating of 40 percent rating for hepatitis C is granted. REMANDED Entitlement to a disability rating greater than 40 percent for hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's hepatitis C manifests in symptoms that more closely approximate daily fatigue and malaise, with minor weight loss and hepatomegaly. CONCLUSION OF LAW The criteria for entitlement to a 40 percent disability rating for hepatitis C are met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.112, 4.114, Diagnostic Code (DC) 7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Army from August 1982 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) hereinafter, the Agency of Original Jurisdiction (AOJ). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans' Law Judge. A transcript of that hearing has been reviewed and is of record. The issue of entitlement to a TDIU has been raised by the record and is considered part of the increased rating appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is a part of a claim for increased compensation). Entitlement to an increased disability rating of 40 percent rating for hepatitis C Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Currently, the Veteran's service-connected hepatitis C is rated at 20 percent effective February 13, 2015, under 38 C.F.R. § 4.114, Diagnostic Code 7354. The Veteran contends that his disability is worse than the rating currently assigned. The Board agrees. Under Diagnostic Code 7354 (hepatitis C), a 40 percent evaluation 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. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 60 percent evaluation 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. Id. A 100 percent evaluation is assigned when there are near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. With regard to the notes following Diagnostic Code 7354, under Note (1): 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. (See 38 C.F.R. § 4.14). Note (2): 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. For purposes of evaluating conditions in 38 C.F.R. § 4.114, 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. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.113. In December 2015, the Veteran was afforded a VA examination for hepatitis, cirrhosis, and other liver conditions. The Veteran was diagnosed with hepatitis C. The VA examiner noted that the Veteran currently had signs or symptoms attributable to chronic or infectious liver diseases. These symptoms included: fatigue that occurred daily; daily malaise; daily right upper quadrant pain; daily anorexia; and intermittent nausea and vomiting. The Veteran never had any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver conditions during the past 12 months. Continuous medication was required for control of the Veteran's liver condition. There were no signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis. The examiner opined that the Veteran's condition did not impact his ability to work. See December 2015 C&P Examination. A March 2016 VA treatment record reflect that the Veteran has cirrhosis of the liver and thus will need to have imaging or GI service follow-up, every 6 months. See CAPRI. A VA treatment note also indicated that the last liver scan done on December 12, 2014 showed that the liver is increased in echogenicity consistent with fatty infiltration. See CAPRI. A November 2015 treatment record show that the Veteran's weight was 208 pounds, 210 pounds on October 30, 2016 and 212 pounds on October 16, 2016. See CAPRI. VA treatment records further note a history of fatty liver and indicate that the Veteran was advised to keep his weight, glucose, and lipids within control. See CAPRI. At Board hearing, the Veteran testified that his weight fluctuates and that he has lost about 38 pounds. See July 2021 Hearing Transcript. After reviewing the evidence of record, the Board finds that a 40 percent rating is warranted for the Veteran's hepatitis C. Specifically, the record reflects that the Veteran had daily symptoms of fatigue, malaise, right upper quadrant pain and anorexia; and intermittent symptoms of nausea and vomiting. While there is insufficient evidence to establish the Veteran's baseline weight prior to the onset of his symptoms, the record does reflect fluctuation and he reported that he had lost 38 pounds, which would be about 10-20 percent of his weight. The record also reflect that the right lobe of the liver is enlarged at 18.9 cm. See CAPRI. Thus, the Veteran's hepatitis C manifests in symptoms more closely approximating daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, and a 40 percent evaluation is granted. REASONS FOR REMAND 1. Entitlement to a disability rating higher than 40 percent for hepatitis C is remanded. As discussed above, the rating criteria for hepatitis C states that sequelae, such as cirrhosis, is to be evaluated under the appropriate Code. 38 C.F.R. § 4.114, Code 7354, Note (1). While the December 2014 VA examiner noted that there was no evidence of cirrhosis, subsequent VA medical treatment records reflects that the Veteran has cirrhosis of the liver. The records also show mild hypertensive portal gastropathy was found in the body of the stomach. See CAPRI. Pursuant to the rating criteria for cirrhosis, a 50 percent evaluation is warranted if the Veteran has a history of one episode of hepatic encephalopathy. A 70 percent evaluation is warranted if he has a history of two or more episodes of hepatic encephalopathy. A 100 percent evaluation is warranted if his hepatic encephalopathy is refractory to treatment. 38 C.F.R. § 4.114, Code 7312. At Board hearing, the Veteran stated that he last received treatment for his hepatitis condition from the Memphis VAMC approximately three years ago (i.e., 2019). The medical evidence from the Memphis VAMC is dated up to 2017. It appears that the VA treatment records are incomplete. Thus, a remand is warranted to obtain these outstanding records, and to obtain new a VA examination, assessing the current level and severity of the Veteran's service-connected hepatitis C disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran has contended that his service-connected hepatitis C has impacted his ability to work. the Veteran has not submitted a formal application for a TDIU. Though not strictly required, the variables that affect such a rating like the Veteran's work history, his education, and special skills are all included on the application. Thus, on remand, the Veteran must be provided with the requisite notice regarding what is necessary to substantiate a claim for entitlement to a TDIU. A request should be made that the Veteran complete and return VA Form 21-8940, the application for increased compensation based on unemployability, and invite him to submit any additional evidence in support of the claim. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of the Veteran's outstanding treatment records from the Memphis VAMC from 2017 to the present. 2. The AOJ should obtain, if possible, records of relevant private evaluations and treatment the Veteran has received, to include from any private primary care physician. The Veteran must assist in the matter by identifying any private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. After the development in the first two directives is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected hepatitis C. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. 4. Request the Veteran to complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. If the Veteran returns the completed application, conduct any necessary development stemming from that application. 5. If upon completion of the above actions the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.