Citation Nr: 21067055 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-19 532 DATE: November 3, 2021 ORDER Entitlement to an initial compensable evaluation for hepatitis B is denied. FINDING OF FACT Throughout the appeal period, the Veteran's hepatitis B has not been more nearly manifested by 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. CONCLUSION OF LAW The criteria for an initial compensable rating for hepatitis B have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7345. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1962 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran is in receipt of a permanent and total, schedular 100 percent rating effective March 4, 2021. In December 2020, the Board remanded the claims of entitlement to service connection for hepatitis B, diabetes mellitus, and right ear hearing loss disability for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). During remand status, an August 2021 rating decision, among other things, granted the claims for service connection for diabetes mellitus and right ear hearing loss. As this is a full grant of the benefits sought on appeal with regard to those claims, there remains no controversy for the Board to consider. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). Entitlement to an initial compensable rating for hepatitis B. A December 2018 rating decision granted service connection for hepatitis B and assigned a noncompensable rating from September 24, 2018. See Rating Decision (December 2018). This appeal arises from the Veteran's disagreement with the initial evaluation. See NOD (January 2019). The Veteran contends that a higher rating is warranted because hepatitis B caused him "to be tired and fatigued often." Id. See also VA Form 9 (April 2020). The Board concludes that the preponderance of the evidence is against the assignment of an initial compensable rating under Diagnostic Code 7345 because the more persuasive evidence of record does not more nearly reflect that Veteran's hepatitis B is manifested by intermittent fatigue, malaise, anorexia, or incapacitating episodes. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7345. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. The Veteran's hepatitis B is rated under Diagnostic Code 7345, pertaining to chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, etc.). Under Diagnostic Code 7345, a noncompensable rating is warranted when hepatitis B is nonsymptomatic. A 10 percent rating is warranted for 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 40 percent rating is warranted when there is 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 is warranted for hepatitis B, when it is manifested by 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 schedular rating is warranted when there are near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Following the rating criteria, Note (1) indicates sequelae, such as cirrhosis or malignancy of the liver, are to be rated under an appropriate diagnostic code but not the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354. Note (2) provides that for purposes of evaluating conditions under diagnostic code 7345, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Lastly, Note (3) states Hepatitis B infection must be confirmed by serologic testing in order to evaluate it under diagnostic code 7345. 38 C.F.R. § 4.114, Diagnostic Code 7345. In this case, the VA examination reports, dated in November 2018 and August 2021, reflect the Veteran does not currently have any signs or symptoms attributable to chronic or infectious liver diseases, including hepatitis B. There were no findings of fatigue, malaise, anorexia, weight loss, arthralgia, hepatomegaly, right upper quadrant pain, cirrhosis, liver transplant and/or liver injury. The Veteran does not require medication to control his condition. Furthermore, both reports reflect the Veteran has not had any incapacitating episodes due to hepatitis B during the past 12 months. At the November 2018 examination, the Veteran reported symptoms of anemia, abdominal problems, severe fatigue and shortness of breath that make him susceptible to other issues. An August 2021 addendum opinion reflects the Veteran's anemia of chronic disease is secondary to his service-connected chronic renal disease based on multiple notations by his nephrologist and primary care provider. The opinion also concluded the Veteran's severe fatigue and shortness of breath are most likely due to his nonservice-connected chronic obstructive pulmonary disease (COPD), coronary artery disease (CAD), diabetes mellitus (DM), obstructive sleep apnea (OSA) and coronary artery bypass graft (CABG). Lastly, the opinion indicates the Veteran has not been seen or treated for any complications regarding his hepatitis B and his liver enzymes have been normal over the years. As such, his reported symptoms are less likely than not due to his hepatitis B infection. Contrary to the Veteran's representative's October 2021 argument, the VA examination report reflects consideration of those symptoms that the Veteran believes are manifestations of his service-connected hepatitis B, as explained above. Moreover, the Board acknowledges the Veteran's belief that the functional impact caused by his hepatitis B is more severe than the assigned disability rating reflects. However, the Veteran is not competent to attribute symptoms such as fatigue and shortness of breath to hepatitis B as he lacks the requisite medical expertise and training to render a medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the August 2021 VA addendum opinion reflects the Veteran's anemia is secondary to his chronic kidney disease and symptoms of fatigue and shortness of breath are attributable to a combination of respiratory, cardiovascular and endocrine conditions. The Board finds the August 2021 addendum VA medical opinion of high probative value as it is based on an accurate medical history, review of the claims file and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008). Further, it is also noted that the RO assigned an 80 percent rating for service-connected chronic renal disease, in part, based on evidence of generalized poor health characterized by lethargy and weakness. See Rating Decision Narrative (August 2021). The Board has considered other potentially applicable diagnostic codes. However, only Diagnostic Code 7345 specifically addresses the criteria for evaluating hepatitis B. The Board cannot identify a more appropriate diagnostic code, and the Veteran has not identified one. Butts v. Brown, 5 Vet. App. 532 (1993). Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Code 7345. (Continued on the next page) In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to an initial compensable rating for hepatitis B. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Accordingly, the claim is denied. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.