Citation Nr: 21067790 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 14-25 921 DATE: November 5, 2021 ORDER Entitlement to an initial compensable rating for hepatitis C and cirrhosis of the liver prior to January 9, 2014, is denied. Entitlement to a 30 percent rating, but not higher, for residuals of hepatitis C and cirrhosis of the liver from January 9, 2014, to November 8, 2015, is granted. Entitlement to a 30 percent rating, but not higher, for residuals of hepatitis C, cirrhosis of the liver, and gastroesophageal reflux disease (GERD) beginning November 9, 2015, to October 23, 2020, is granted. Entitlement to an evaluation in excess of 30 percent for residuals of hepatitis C, cirrhosis of the liver, and GERD since October 23, 2020, is denied. Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 9, 2014, hepatitis C and cirrhosis of the liver did not manifest signs or symptoms that more nearly approximated a compensable rating. 2. Resolving reasonable doubt in the Veteran's favor, his residuals of hepatitis C and cirrhosis of the liver were manifested by diarrhea with more or less constant abdominal distress during the period from January 9, 2014, to November 9, 2015. 3. Resolving reasonable doubt in the Veteran's favor, his residuals of hepatitis C, cirrhosis of the liver, and GERD were manifested by diarrhea with more or less constant abdominal distress since November 9, 2015. 4. The Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for hepatitis C and cirrhosis of the liver prior to January 9, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.31, 4.114, Diagnostic Codes 7312, 7354. 2. The criteria for entitlement to a 30 percent rating, but not higher, for residuals of hepatitis C and cirrhosis of the liver from January 9, 2014, to November 9, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.31, 4.114, Diagnostic Codes 7312, 7319, 7354. 3. The criteria for entitlement to a 30 percent rating, but not higher, for residuals of hepatitis C, cirrhosis of the liver, and GERD from November 9, 2015, to October 23, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.31, 4.114, Diagnostic Codes 7312, 7319, 7346, 7354. 4. The criteria for entitlement to an evaluation in excess of 30 percent for residuals of hepatitis C, cirrhosis of the liver, and GERD, since October 23, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.31, 4.114, Diagnostic Codes 7312, 7319, 7346, 7354. 5. The criteria for entitlement to TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In a November 2018 decision, the Board denied the Veteran's claim for an initial compensable rating for hepatitis C and cirrhosis of the liver. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2019 Joint Motion for Remand (JMR), the Court vacated and remanded the matter to the Board. The Board subsequently remanded the matter in May 2020 and April 2021. Following the May 2020 Board remand, the AOJ increased the Veteran's disability rating for his service-connected residuals of hepatitis C and cirrhosis of the liver to 30 percent, effective October 23, 2020. The service-connected hepatitis C and cirrhosis of the liver were rated concurrently with service-connected GERD. For VA benefits claims such as those decided herein, VA has duties to notify and assist claimants. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. The AOJ associated the Veteran's service records as well as VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. Several private medical providers from which the Veteran received treatment required payment to release identified records. VA notified the Veteran in February 2012 that the records had been requested and it was ultimately his responsibility to obtain them. Additionally, the Veteran and his attorney informed VA of treatment in 2008. An April 2021 records search confirmed that no records existed at the identified VA medical center (VAMC) prior to April 22, 2009 (the date of the first record from that VAMC associated with the claims file). The Veteran and his attorney were informed in a May 2021 letter. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disabilities and their symptoms. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Increased Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (Code), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where, as here, the question for consideration is the propriety of the initial disability rating assigned, however, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating compensates the veteran for variations in the disability's severity since the effective date of his award. When weighing evidence, lay statements that describe the features or symptoms of an injury or illness are considered competent evidence. Falzone v. Brown, 8 Vet. App. 398 (1995). A lay person is also competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Once evidence is determined competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]). As outlined in the April 2021 Board remand, the Veteran's claim involves entitlement to an initial compensable rating prior to October 23, 2020, and in excess of 30 percent thereafter, for digestive disability within 38 C.F.R. § 4.114, variously claimed as residuals of hepatitis C (Code 7354); cirrhosis of the liver (Code 7312); and GERD (Code 7346). Moreover, when the AOJ rated the three conditions together for a 30 percent rating (effective October 23, 2020) in a January 2021 rating decision, the AOJ used an additional Code (Code 7319, irritable colon syndrome) to reflect the predominant disability picture of the three conditions. Currently, residuals of hepatitis C, cirrhosis of the liver, and GERD are rated 30 percent disabling (effective October 23, 2020) under hyphenated Code 7354-7319. Hyphenated Codes are used when a rating under one Code determines its rating based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27. Thus, the symptoms associated with irritable colon syndrome (Code 7319) are residuals of the Veteran's hepatitis C (Code 7354). Under 38 C.F.R. § 4.114, ratings under Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) are not combined with each other. Instead, a single evaluation must be assigned under the Code that "reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation." 38 C.F.R. § 4.114. Cirrhosis of the liver, GERD, and irritable colon syndrome (respectively, Codes 7312, 7346, and 7319) clearly fall within these parameters. Accordingly, to comply with 38 C.F.R. § 4.114, a single rating is utilized for cirrhosis of the liver, GERD, and irritable colon syndrome (as a residual of hepatitis C). Hepatitis C is evaluated pursuant to the rating criteria set forth at 38 C.F.R. § 4.114, Code 7354. Each rating requires serologic evidence of hepatitis C infection. 38 C.F.R. § 4.114, Code 7354. A noncompensable rating is assigned for "[n]onsymptomatic" hepatitis C. Id. A 10 percent rating is assigned for hepatitis C demonstrating "[i]ntermittent fatigue, malaise, and anorexia." Id. A 10 percent rating is alternatively assigned for "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." Id. A 20 percent rating is assigned for hepatitis C manifested by "[d]aily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) requiring dietary restriction or continuous medication." Id. Alternatively, a 20 percent rating is warranted for "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 rating is assigned for hepatitis C exhibiting "[d]aily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly." Id. A 40 percent rating may be alternatively established for "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 rating is warranted for hepatitis C manifested by "[d]aily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly." Id. In the alternative, a 60 percent rating is assigned for "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 100 percent rating is assigned for hepatitis C with "[n]ear-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 evaluated under an appropriate Code. The same signs and symptoms should not be used as the basis for rating under both Code 7354 and the other Code, however. Id. at Note (1). For the ratings above, an "incapacitating episode" means "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." Id. at Note (2). Like hepatitis C, cirrhosis of the liver is also evaluated under 38 C.F.R. § 4.114, using Code 7312. To rate following Code 7312, the veteran must have abnormal liver function tests and cirrhosis must be documented by biopsy or imaging. 38 C.F.R. § 4.114, Code 7312, Note. When cirrhosis is manifested by "[s]ymptoms such as weakness, anorexia, abdominal pain, and malaise," a 10 percent rating is warranted. Id. A 30 percent rating is assigned for cirrhosis where "[p]ortal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss," are present. Id. For a 50 percent rating, a veteran must have a "[h]istory of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis)." Id. A 70 percent rating is warranted where a veteran has a "[h]istory of two or more episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), but with periods of remission between attacks." Id. To receive a 100 percent rating for cirrhosis, a veteran must experience "[g]eneralized weakness, substantial weight loss, and persistent jaundice." Alternatively, a 100 percent rating is assigned where "one of the following [is] refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis)." Id. For purposes of evaluating conditions of the digestive system, 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." 38 C.F.R. § 4.112. 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." Id. In addition, the term "inability to gain weight" means that "there has been substantial weight loss with an inability to regain it despite appropriate therapy." Id. As used in these definitions, "baseline weight" means the veteran's "average weight for the two-year period preceding onset of the disease." Id. For the Veteran's service-connected GERD, the disability is rated under 38 C.F.R. § 4.114, using Code 7346 for hiatal hernia. Pursuant to Code 7346, a 10 percent rating is warranted for GERD when a veteran has "two or more of the symptoms for the 30 percent evaluation of less severity." 38 C.F.R. § 4.114. A 30 percent evaluation is warranted for "[p]ersistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health." Id. The maximum 60 percent evaluation is assigned for "[s]ymptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health." Id. Finally, Code 7319 in 38 C.F.R. § 4.114 covers the symptoms associated with irritable colon syndrome. A noncompensable rating is assigned where the condition is "[m]ild," including "disturbances of bowel function with occasional episodes of abdominal distress." 38 C.F.R. § 4.114, Code 7319. A 10 percent rating is warranted where the condition is "[m]oderate," with "frequent episodes of bowel disturbance with abdominal distress." Id. A maximum rating of 30 percent is assigned for situations in which the condition is "[s]evere, including "diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress." Id. 1. Entitlement to an initial compensable rating for hepatitis C and cirrhosis of the liver prior to January 9, 2014 The Veteran contends that he is entitled to a compensable rating because he experienced hepatitis C and/or cirrhosis symptoms prior to October 23, 2020. For the following reasons, the Board finds that an initial compensable rating is not warranted for the period prior to January 9, 2014. During this period, the rating is assigned under Code 7354 During this period, the Veteran's hepatitis C and cirrhosis are appropriately rated noncompensable under Code 7354 for hepatitis C. An October 2008 private medical record noted that the Veteran's hepatitis C had been diagnosed "2 - 3 weeks ago" and that the Veteran did not have jaundice. A November 1, 2008 private bilateral upper quadrant ultrasound found "Hepatopedal blood flow is demonstrated within the portal vein." A November 17, 2008 private medical record indicated that the Veteran complained of fatigue but did not complain of any digestive problems (including nausea, vomiting, indigestion, belching, excessive bloating, excessive gas, heartburn, acidic fluid rising up into mouth, rectal bleeding, or constipation or straining to pass stool). A separate November 17, 2008 record from the same private provider noted that the Veteran's "ultrasound did not show any obvious cirrhosis or splenomegaly. He offers no complaints at this time." That record also indicated, however, that the Veteran was "Positive for joint pains and fatigue otherwise negative." A November 28 private liver biopsy diagnosed "Chronic hepatitis C with moderate portal infiltrate and mild piecemeal necrosis (grade 2) and mildly enlarged fibrotic portal tracts (stage II)." In additional private treatment records dated November 2004, April 2005, June 2005, December 2005, June 2007, March 2008, March 2009, August 2009, and April 2010, the Veteran did not report "fatigue" or gastrointestinal symptoms, including "upset," "heartburn," "nausea," "emesis," "pain," "diarrhea," "constipation," and "blood." A July 2006 private treatment record did note "fatigue" (but no gastrointestinal symptoms) and a December 2009 private treatment record indicated "diarrhea" but not fatigue or any other gastrointestinal symptom. A January 2011 VA medical center (VAMC) record reported that the Veteran had no abdominal pain, nausea, vomiting, rectal bleeding, weight loss, or anorexia. A December 2011 VAMC liver clinic consult indicated that the Veteran's "appetite [is] good, wt going down with dieting and exercise . . . no fatigue, or weakness. no nausea, vomiting, [n]o dysphagia or odynophagia fever, abdominal discomfort or swelling, no jaundice, easy bruising rashes, no joint or muscle pain"; the consult also reported that "stool [is] normal brown, formed." April 2012 and November 2012 VAMC records noted that the Veteran denied problems with bowel or bladder, nausea, vomiting, diarrhea, and blood in stool. A December 2012 VA examination diagnosed hepatitis C. The VA examination indicated that continuous medication was not required to control his hepatitis C. The VA examination noted that there were no signs or symptoms attributable to chronic or infectious liver disease (including fatigue, malaise, anorexia, nausea, vomiting, arthralgia, weight loss, right upper quadrant pain, or hepatomegaly) or signs or symptoms attributable to cirrhosis. It additionally reported that the Veteran has not had any incapacitating episodes over the past 12 months. An April 2013 VAMC record noted that the Veteran denied problems with bowel or bladder, nausea, vomiting, diarrhea, and blood in stool. A June 2013 VAMC gastroenterology record indicated that the Veteran's appetite was "good, wt going down with dieting and exercise. lost close to 50 lbs over 2 yrs no fatigue, or weakness. no nausea, vomiting, [n]o dysphagia or odynophagia fever, abdominal discomfort or swelling, no jaundice, easy bruising rashes, no joint or muscle pain"; the record also stated, "stool normal brown, formed." On October 23, 2013, the Veteran began treatment at the VAMC for hepatitis C with medications peginterferon and ribavirin. A November 6, 2013 VAMC liver clinic record indicated that the Veteran had "some tired eye sx [symptoms] gone in few hours no other Sx." A November 20, 2013 VAMC gastroenterology record reported that the Veteran was beginning treatment with another medication, boceprevir; the record noted that the Veteran "is feeling well." Two December 2013 VAMC records (dated December 4 and 18) stated that the Veteran "is feeling well. No rx [medication] side effects." A January 9, 2014 VAMC mental health record noted that the Veteran "feels tired from anti[-]viral med." A January 15, 2014 VAMC liver clinic record indicated that the Veteran "is feeling well, but increase in joint pain. Has noticed gastric upset and increase flatus and stool soft snf [sic] 'sticky' neesds [sic] to wipe 8 - 10 times." A February 12, 2014 VAMC liver clinic record stated that the Veteran wanted to stop treatment for hepatitis C; the record also noted that "He is feeling well, but increase in joint pain. Has noticed gastric upset and increase flatus and stool soft snf [sic] 'sticky' neesds [sic] to wipe 8 - 10 times." The hepatitis C medications were stopped on February 12, 2014. After reviewing the criteria of Code 7354 for rating hepatitis C, the Board finds that the Veteran's service-connected disability most closely approximates a noncompensable rating for "[n]onsymptomatic" hepatitis C prior to January 9, 2014. There is no evidence of incapacitating episodes during the period at issue. The Veteran did complain of fatigue in July 2006 and November 2008, but those complaints were preceded and followed by many treatment records in which fatigue was specifically denied or not mentioned. Moreover, the only references to documented complaints of fatigue before the January 9, 2014 VAMC record of "tired[ness]," are dated more than 20 months prior to the claim's effective date. For these reasons, the Board finds that a compensable rating is not warranted under Code 7354 for the period prior to January 9, 2014. The Board has also considered whether a compensable rating would be appropriate under Code 7312 for cirrhosis of the liver during this period. The December 2012 VA examination found no signs or symptoms attributable to cirrhosis, including weakness, anorexia, abdominal pain, malaise, weight loss, ascites, hepatic encephalopathy, hemorrhage from varices, portal gastropathy, portal hypertension, splenomegaly, or persistent jaundice. This is supported by the private and VAMC treatment records, which also fail to record such symptoms. Although a noncompensable rating is not listed in the Rating Schedule for Code 7312, "a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." 38 C.F.R. § 4.31. Thus, the Board finds that a compensable rating is not warranted under Code 7312 for the period prior to January 9, 2014. In reaching these conclusions, the Board has considered statements from the Veteran. In an informal notice of disagreement (NOD) received in April 2013 (dated February 2013), the Veteran stated that hepatitis C "has personally caused me years of indigestion, nausea, diarrhea, and fatigue." The Veteran did not specify in which years he was affected by these symptoms. In a related statement received in March 2014 (dated February 2014), the Veteran stated "I was treated for Hepatitis C for I believe 16 weeks very recently . . . . this made me nauseous with diarrhea for the entire period. Finally I had to stop the process Because it was entirely too much for my mind and body to take." Private and VAMC treatment records from November 2004 to December 2013, as well as the December 2012 VA examination, almost universally noted no gastrointestinal symptoms prior to January 9, 2014. Although the Veteran is competent is report symptoms he experienced, the Board finds the first statement is not credible to the extent that it implies the Veteran experienced gastrointestinal symptoms between November 2004 and April 2013. Except for complaints of fatigue in July 2006, joint pain and fatigue in November 2008, and diarrhea in December 2009, the medical records consistently fail to report symptoms of hepatitis C or cirrhosis. Similarly, although the Veteran reported in his March 2014 statement that he felt "nauseous with diarrhea for the entire period" of his hepatitis C treatment, the Board finds this statement is not credible because multiple VAMC records during the treatment period indicated that the Veteran had no symptoms or side effects prior to January 9, 2014, other than "some tired eye sx" on November 6, 2013, that were "gone in [a] few hours." Finally, the Veteran stated in the April 2013 informal NOD that cirrhosis "can lead to" portal hypertension. The Veteran did not allege that he has portal hypertension, however, and there is no such diagnosis in the treatment records or VA examination. Thus, although the Veteran has hypertension, there is no evidence that he experienced portal hypertension during the appeal period. For the foregoing reasons, the Board finds that the Veteran's hepatitis C and cirrhosis of the liver more nearly approximated a noncompensable rating during the period prior to January 9, 2014. Entitlement to an initial compensable rating for hepatitis C and cirrhosis of the liver prior to January 9, 2014, is accordingly denied. 2. Entitlement to a 30 percent rating, but not higher, for residuals of hepatitis C and cirrhosis of the liver from January 9, 2014, to November 9, 2015 The Veteran contends that he is entitled to a compensable rating because he experienced symptoms of hepatitis C and/or cirrhosis prior to October 23, 2020. For the following reasons, the Board finds that a rating of 30 percent, but not higher, is warranted for the period from January 9, 2014, to November 8, 2015. As an initial matter, the Veteran's residuals of hepatitis C and cirrhosis of the liver are currently rated under Code 7354. After considering the evidence, the Board finds that the proper Code for the period from January 9, 2014, to November 8, 2015, is Code 7354-7319, which reflects the residuals of hepatitis C. When the Board changes the Code used to rate a veteran's disability, the Board must also determine whether the modification constitutes a severance of service connection. VA has consistently found that protection is afforded to a disability and not the Code used to rate the disability. See VAOPGCPREC 13-92 (modifications of the Code did not change the protected status of the disability). The Court has similarly indicated that there may be times when a change in Code is not equivalent to a severance. See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (holding that a simple, nonsubstantive administrative decision to correct the part of the body disabled by an in-service injury "did not result in a new rating or the severance of the old rating"). Potential severance was also addressed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). In Read, the Federal Circuit noted that the purpose of section 1159 was to protect veterans with long-standing determinations of service connection from having those determinations suddenly stripped away. Id. at 1301. In addition, it would "ill-serve the purpose of the statute" to classify a change in a disability's situs or associated Code as "a severance of one service connected disability and the establishment of another, where the cause of the disability and the resultant functional impairment were the same . . . ." Id. The Federal Circuit also found its view was consistent with the interpretation of the statute by VA General Counsel (in VAOPGCPREC 50-91 and 13-92) and by the Court in Gifford. Read, 651 F.3d at 130102. In this case, assigning a rating under Code 7354-7319 does not constitute a severance. Instead, the Board has determined that a different Code different is a more accurate descriptor of the service-connected disability. As discussed below, the symptoms experienced by the Veteran are more accurately described by Code 7354-7319. Moreover, the use of this Code does not result in any reduced benefit to the Veteran: he is currently rated noncompensable under the criteria for hepatitis C. Rating his residuals under Code 7354-7319 leads to an increased rating of 30 percent. Thus, the assignment of a different Code does not result in an improper severance of service connection for the Veteran's disability. Turning to the facts of the case, the prior section noted that the Veteran started treatment at the VAMC for hepatitis C with medications peginterferon and ribavirin on October 23, 2013. He began treatment with boceprevir on November 20, 2013. A January 9, 2014 VAMC mental health record noted that the Veteran "feels tired from anti[-]viral med." A January 15, 2014 VAMC liver clinic record indicated that the Veteran "is feeling well, but increase in joint pain. Has noticed gastric upset and increase flatus and stool soft snf [sic] 'sticky' neesds [sic] to wipe 8-10 times." A February 12, 2014 VAMC liver clinic record stated that the Veteran wanted to stop treatment for hepatitis C; the record also noted that "He is feeling well, but increase in joint pain. Has noticed gastric upset and increase flatus and stool soft snf [sic] 'sticky' neesds [sic] to wipe 8-10 times." The VAMC stopped treatment with hepatitis C medications on February 12, 2014. In a March 2014 statement (dated February 2014), the Veteran reported "I was treated for Hepatitis C for I believe 16 weeks very recently . . . . this made me nauseous with diarrhea for the entire period. Finally I had to stop the process Because it was entirely too much for my mind and body to take." In April 2014, the Veteran filed a statement in which he indicated that hepatitis C "has personally caused me years of indigestion, nausea, diarrhea, and fatigue." A June 2014 VAMC record noted that the Veteran denied "abdominal pain," "problems with bowel or bladder, " and problems with his throat. A July 2014 VAMC hepatology consult reported that six months after stopping the medications for hepatitis C, a test showed that the "virus is still cleared from system." The July 2014 VAMC hepatology consult also indicated that the Veteran "is feeling well, but increase in joint pain. Has noticed gastric upset and increase flatus and stool soft snf [and] 'sticky' neesds [sic] to wipe 8 - 10 times." In a June 2014 substantive appeal, the Veteran stated he has had hepatitis C for 43 years and "I have been nauseated on and off for 43 years. Sometimes diarrhea was so bad that blood was apparent at my rear end." November 2014 and January 2015 VAMC records noted that the Veteran "[d]enies abdominal pain. Eating okay. Denies nausea or vomiting. No diarrhea or constipation." A March 2015 VAMC gastroenterology telephone contact record indicated that the Veteran "is still bothered by GERD taking lots of OTC antacids . . . w[ith] no relief." The March 2015 VAMC contact record further reported that the Veteran had previously been treated with medication that "was last filled May 2014"; this medication was noted to have "helped his GERD and he is agreeable to restarting this." The March 2015 VAMC contact record listed the Veteran's reports of "BMs 2 - 3 per day from formed to loose w[ith] no BRBPR [bright red blood per rectum] for '40 yrs', . . . cramping and abomdinal [sic] pain is chronic." The March 2015 VAMC contact record assessed "Uncontrolled GERD . . . Loose stools and abdominal cramping, no alarm signs reported today. Heavy use of OTC antacids likely contributing." The Veteran submitted a March 2015 examination by a VAMC employee, which noted "[t]o date, 6 months after [hepatitis C] treatment completed pt he's SVR (cure)." The March 2015 examination further reported that the Veteran did not require continuous medication for control of his liver conditions; that he had no signs or symptoms of infectious liver disease (including fatigue, malaise, anorexia, nausea, vomiting, arthralgia, weight loss, right upper quadrant pain, hepatomegaly, requiring dietary restriction, or resulting in malnutrition); that he did not have any signs or symptoms attributable to cirrhosis (no weakness, anorexia, abdominal pain, malaise, weight loss, ascites, hepatic encephalopathy, hemorrhage from varices, hemorrhage from portal gastropathy, portal hypertension, splenomegaly, or persistent jaundice); and that he had not had any incapacitating episodes due to liver conditions during the past 12 months. A June 2015 VAMC record noted that the Veteran "[d]enies abdominal pain. Eating okay. Denies nausea or vomiting. No diarrhea or constipation. c/o [complains of] gas. No heartburn. using tums. protonix not helping gas." In a September 2015 VAMC physical rehab consult review of systems, the Veteran denied weight loss, abdominal pain, nausea, vomiting, diarrhea, and constipation. After reviewing this evidence, and granting the Veteran the benefit of the reasonable doubt, the Board finds that the Veteran's symptoms most nearly approximate a 30 percent rating, using Code 7319 (irritable colon syndrome) to rate the Veteran's residuals of hepatitis C. A December 2020 VA medical opinion determined that the Veteran's "flatulence, abdominal pain, [and] intermittent diarrhea represent residual symptoms of Hepatitis C and treatment" because abdominal pain and diarrhea are long-term side effects of peginterferon. The Veteran reported "gastric upset," "increase[d] flatus," and "soft," "sticky" stool in the January 2014, February 2014, and July 2014 VAMC records. He also reported nausea in the March 2014 statement; two to three "formed to loose" stools per day with "chronic" cramping and abdominal pain in a March 2015 VAMC record; and "gas" in a June 2015 VAMC record. Although the VAMC records documenting symptoms are interspersed with VAMC records in which he denied symptoms (beginning June 2014 and continuing in November 2014, January 2015, June 2015, and September 2015), the Board grants reasonable doubt in the Veteran's favor and finds that his symptoms continued throughout the period at issue. The Veteran complained of abdominal pain, gas, and diarrhea; these symptoms more closely approximate the maximum 30 percent rating under Code 7319, which lists irritable colon syndrome with diarrhea and "more or less constant abdominal distress." The Board has considered whether rating direction under Code 7354 for rating hepatitis C would result in a higher rating. The Board has determined, however, that the Veteran's residuals of hepatitis C most closely approximates a 10 percent rating for the period from January 9, 2014, to November 8, 2015. The Veteran mentioned feeling "tired" with "joint pain" and "gastric upset" in the January 2014 VAMC record. February 2014 and July 2014 VAMC records similarly noted "joint pain" and "gastric upset," while the March 2015 VAMC telephone contact documented "chronic" cramping and abdominal pain. The treatment records did not mention incapacitating episodes, and the March 2015 examination specifically found that the Veteran had not had any incapacitating episodes during the past 12 months. As noted above, the Veteran denied abdominal pain and gastrointestinal symptoms in multiple VAMC records during this time. "Tired[ness]" was only noted in the January 2014 VAMC record and the Veteran referenced "years of . . . fatigue" in the April 2014 statement. Thus, the Veteran's symptoms approximated a 10 percent rating for intermittent fatigue under Code 7354 from January 9, 2014, to November 9, 2015. The Board has also considered whether an evaluation under Code 7312 for cirrhosis of the liver would generate a rating higher than 30 percent during this period. As with Code 7354, the Veteran's symptoms most nearly approximate a 10 percent rating under the criteria for Code 7312. The Veteran reported experiencing abdominal pain and feeling tired and fatigued, which correspond to a 10 percent rating, but the requirements for a rating in excess of 10 percent under Code 7312 are not met. For example, the evidence does not document portal hypertension, splenomegaly, minor weight loss, ascites, hepatic encephalopathy, hemorrhage from varices, or portal gastropathy. Accordingly, a rating higher than 30 percent would not be warranted under Code 7312 for cirrhosis of the liver. In reaching these conclusions, the Board has considered statements from the Veteran. In the March 2014 statement (dated February 2014), the Veteran reported 16 weeks of hepatitis C treatment that "made me nauseous with diarrhea for the entire period. Finally I had to stop the process Because it was entirely too much for my mind and body to take." Relatedly, in the April 2014 statement, the Veteran indicated that hepatitis C "has personally caused me years of indigestion, nausea, diarrhea, and fatigue." The Veteran provided similar information in the June 2014 substantive appeal, when he reported that "I have been nauseated on and off for 43 years. Sometimes diarrhea was so bad that blood was apparent at my rear end." These statements failed to specify the years in which these symptoms took place, and the Board has already addressed the credibility of the Veteran's statements for the period prior to January 9, 2014. Regarding the period at issue in this section, the Board has accepted the Veteran's statements as credible evidence of intermittent symptoms because the March 2014 statement listed a specific time period, the April 2014 statement provided no temporal context, and the statement in the January 2014 substantive appeal described nausea "on and off" and diarrhea of varying intensity without referencing the frequency of the diarrhea. Additionally, the Veteran indicated in the April 2014 statement that cirrhosis "can lead to" portal hypertension. He later attributed his hypertension to his cirrhosis in the June 2014 substantive appeal. For the April 2014 statement, the Veteran did not allege that he has portal hypertension, however, and there is no such diagnosis in the treatment records or VA examination. As to the statement from the June 2014 substantive appeal, there is no evidence linking hypertension to cirrhosis, and the Veteran has not demonstrated the medical expertise necessary to opine regarding the etiology of a complicated conditions such as hypertension. Thus, although the Veteran has hypertension, there is no evidence that he experienced portal hypertension during the appeal period or that his hypertension is related to his cirrhosis of the liver. In sum, the Board finds that the Veteran's residuals of hepatitis C and cirrhosis of the liver more nearly approximated a 30 percent rating during the period from January 9, 2014, to November 8, 2015. This rating, under Code 7354-7319, represents the highest applicable rating for this disability. Thus, entitlement to a 30 percent rating, but not higher, for residuals of hepatitis C and cirrhosis of the liver during the period from January 9, 2014, to November 8, 2015, is granted. 3. Entitlement to a 30 percent rating, but not higher, for residuals of hepatitis C, cirrhosis of the liver, and GERD beginning November 9, 2015 The Veteran contends that he is entitled to a compensable rating prior to October 23, 2020, for his residuals of hepatitis C and cirrhosis of the liver. For the following reasons, the Board finds that a rating of 30 percent, but not higher, is warranted beginning November 9, 2015. Initially, the Board notes that this decision will change the disability's applicable Code for a portion of the appeals period. Currently, residuals of hepatitis C and cirrhosis of the liver is rated under Code 7354 prior to October 23, 2020. GERD is rated under Code 7399-7346 prior to October 23, 2020. In accordance with 38 C.F.R. § 4.114, which does not allow simultaneous ratings under Codes 7312, 7319, and 7346, the AOJ selected Code 7354-7319 as the Code reflecting the Veteran's predominant disability picture beginning October 23, 2020. After considering the evidence, the Board finds that Code 7354-7319 is the proper Code for the entire period beginning November 9, 2015, and so the separate evaluation for GERD will end and be included with the generalized gastrointestinal rating; this is to the Veteran's advantage. As noted in the previous section, the Board must determine whether the modification of a Code constitutes a severance of service connection whenever the Board changes the Code used to rate a veteran's disability. See VAOPGCPREC 13-92; Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011); Gifford v. Brown, 6 Vet. App. 269, 271 (1994). Once again, assigning a rating under Code 7354-7319 does not constitute a severance. Instead, the Board has determined that a different Code more accurately describes the service-connected disability. As discussed below, the symptoms experienced by the Veteran are more accurately described by Code 7354-7319. Moreover, the use of this Code does not result in any reduced benefit to the Veteran: prior to October 23, 2020, he is currently rated noncompensably disabled under the criteria for hepatitis C and 10 percent disabled under the criteria for GERD. Rating these disabilities together under Code 7354-7319 leads to an increased rating of 30 percent for the period from November 9, 2015, to October 22, 2020. The Code and its rating do not change beginning October 23, 2020. Thus, the assignment of a different Code does not result in an improper severance of service connection for the Veteran's disability. Turning to the facts of the case, the Veteran reported in an addendum to his November 9, 2015 claim for GERD, "I have irritable bowel syndrome, frequent diarrhea and constipation." A January 2016 VAMC gastroenterology record noted "He is feeling well, but increase in joint pain. Has noticed increase flatus." A May 2016 VAMC record noted that the Veteran "Denies abdominal pain. Eating okay. Denies nausea or vomiting. No diarrhea or constipation." In its assessment and plan section, the May 2016 VAMC record indicated that "Gas/bloating" was "resolved." August 2016 and November 2016 VAMC records stated that the Veteran had "no abdominal pain, dysphagia, odynophagia, GERD, bloating, constipation, diarrhea, blood in stool, or dark stools" as well as no unintentional weight loss or fatigue. A March 2017 VA examination indicated that the Veteran had no signs or symptoms attributable to chronic liver disease, infectious liver disease, or cirrhosis of the liver at the time of the examination. July 2017, August 2017, and January 2018 VAMC records similarly noted no unintentional weight loss, fatigue "abdominal pain, dysphagia, odynophagia, GERD, bloating, constipation, diarrhea, blood in stool, or dark stools." A June 2018 VAMC record, noting that the Veteran was following up on "acute gastroenteritis," stated that he was "[f]eeling better, fevers have subsided, no abdominal pain or rectal bleeding . . . Appetite intact, no vomiting" but he did report "diarrhea." A July 2018 VAMC record stated that the Veteran's "gastroenteritis symptoms have resolved" and he had no fatigue, unintentional weight loss, "abdominal pain, dysphagia, odynophagia, GERD, bloating, constipation, diarrhea, blood in stool, or dark stools." In a December 2018 VAMC urology record, the Veteran denied fatigue, weight loss, weakness, nausea, emesis, or changes in bowel movements. A January 2019 VA examination for esophageal condition included the Veteran's report of "symptoms of GERD for '40 or 50 years.' He would treat with TUMS. He is currently on pantoprazole." The VA examination indicated that the Veteran experienced symptoms of dysphagia, pyrosis, reflux, regurgitation, and substernal pain. January 2019 and August 2019 VAMC records noted that the Veteran had "no abdominal pain, dysphagia, odynophagia, GERD, bloating, constipation, diarrhea, blood in stool, or dark stools" as well as no joint pain, fatigue, or unintentional weight loss. In a November 2019 VA examination for intestinal conditions, the Veteran reported that "he continues to experience mild intermittent nausea and diarrhea," although the Veteran stated that those symptoms "ha[ve] improved and [are occurring] less frequent[ly] than before the hep[atitis] c treatment." The VA examination identified the Veteran's signs and symptoms as "infrequent episodes" of both diarrhea and nausea. A December 2019 VAMC urology record noted that the Veteran denied fatigue, weight loss, weakness, nausea, emesis, or changes in bowel movements. An August 2020 VAMC record noted no unintentional weight loss, fatigue, "abdominal pain, dysphagia, odynophagia, GERD, bloating, constipation, diarrhea, blood in stool, or dark stools." An October 2020 VA examination indicated that the Veteran took continuous medication ("Liver Cleansing Milk Thistle Extract Dandelion"). At the VA examination, the Veteran reported "terrible gas" and "intermittent diarrhea." The VA examination listed "Lower GI pain, extreme flatus, and diarrhea" as the current signs or symptoms attributable to the Veteran's liver disease, although the VA examination determined the Veteran's liver conditions did not cause any incapacitating episodes in the past 12 months. Regarding cirrhosis of the liver, the VA examination indicated that the Veteran did not have any signs or symptoms attributable to his cirrhosis. A December 2020 VA medical opinion identified the Veteran's "current symptoms of flatulence, abdominal pain, [and] intermittent diarrhea . . . [as] residual symptoms of Hepatitis C and treatment" because abdominal pain and diarrhea are long-term side effects of peginterferon. In a January 2021 VAMC urology record, the Veteran denied fatigue, nausea, emesis, or changes in bowel movements. A February 2021 VAMC record noted that the Veteran had no unintentional weight loss, fatigue, "abdominal pain, dysphagia, odynophagia, GERD, bloating, constipation, diarrhea, blood in stool, or dark stools." A July 2021 VA medical opinion determined that the Veteran's current symptoms included "gas and intermittent diarrhea," as reported by the Veteran. The VA medical opinion noted that "liver functions are normal, [thus] there is no evidence of active liver dysfunction . . . The [V]eteran has been on no treatment specific for hepatitis C since February 2014." The VA medical opinion identified the Veteran's current diagnosis as hepatitis C ("status post-treatment with nondetectable viral load and normal liver function tests") with secondary diagnoses of "mild cirrhosis and fatty liver." After reviewing this evidence, and granting the Veteran the benefit of the reasonable doubt, the Board finds that the Veteran's symptoms most nearly approximate a 30 percent rating, using Code 7319 (irritable colon syndrome) to rate the Veteran's residuals of hepatitis C. The December 2020 VA medical opinion determined that the Veteran's "flatulence, abdominal pain, [and] intermittent diarrhea represent residual symptoms of Hepatitis C and treatment." The Veteran reported diarrhea and constipation in the addendum to his November 2015 claim for GERD. The January 2016 VAMC record indicated that the Veteran was "feeling well" except for increased joint pain and flatus. A June 2018 VAMC record noted that the Veteran, following up on "acute gastroenteritis," endorsed diarrhea. The Veteran reported "mild intermittent nausea and diarrhea" at the November 2019 VA examination. The October 2020 VA examination noted that the Veteran took continuous medication for his liver condition and referenced the Veteran's reports of "terrible gas," "intermittent diarrhea," and "Lower GI pain." Many VAMC records contradicted the reports of symptoms (for example, in May 2016, August 2016, November 2016, July 2017, August 2017, January 2018, July 2018, January 2019, August 2019, August 2020, and January 2021 VAMC records). Granting the Veteran the benefit of the reasonable doubt, the Board finds that his diarrhea, nausea, gas, and abdominal pain more nearly approximated the criteria for a 30 percent rating. The Board considered whether rating under Code 7354 for hepatitis C would result in a higher rating, but has determined, that the Veteran's residuals of hepatitis C at worst approximate a 10 percent rating in the period beginning November 9, 2015. The Veteran consistently denied fatigue in VAMC treatment records and those records fail to document malaise, anorexia, or incapacitating episodes of nausea, vomiting, arthralgia, right upper quadrant pain, or similar symptoms. The October 2020 VA examination included similar results and noted that the Veteran took continuous medication for his liver conditions. Accordingly, a rating in excess of 30 percent is not appropriate under Code 7354 for hepatitis C. The Board has additionally considered whether an evaluation under Code 7312 for cirrhosis of the liver would generate a rating higher than 30 percent during the period beginning November 9, 2015. At worst, the Veteran's symptoms approximate a 10 percent rating. The treatment records during this period do not document weakness, anorexia, or malaise; the October 2020 VA examination noted lower gastrointestinal pain as a symptom but also indicated that the Veteran did not have any signs or symptoms attributable to his cirrhosis. There is no evidence of portal hypertension or splenomegaly to warrant a 30 percent rating. Thus, a rating in excess of 30 percent would not be warranted under Code 7312 for cirrhosis of the liver. Because the Veteran is also service connected for GERD, the Board has considered whether his GERD symptoms represent the predominant disability picture and whether elevation to the next higher evaluation is warranted. The Veteran reported frequent diarrhea and constipation as well as acid reflux in the addendum associated with his November 2015 claim for GERD. The January 2019 VA examination for esophageal conditions described symptoms of dysphagia, pyrosis, reflux, regurgitation, and substernal pain; the examination noted treatment with pantoprazole. Many VAMC records throughout the period noted no symptoms of GERD. Considering this evidence, the Board finds that, at worst, the Veteran's GERD symptoms would approximate a 30 percent rating. Elevation to the next higher evaluation is not appropriate because the Veteran's overall digestive system disability does not warrant a rating in excess of 30 percent. As noted, the Veteran described his diarrhea as "frequent" or "intermittent" and his gas as "terrible." He also reported lower gastrointestinal pain, joint pain, and constipation. He had GERD symptoms of dysphagia, pyrosis, reflux, regurgitation, and substernal pain. Many treatment records during this same period failed to document any digestive system symptoms, however. Accordingly, his digestive system disabilities do not result in an impairment that warrants a rating in excess of 30 percent. Thus, for the foregoing reasons, the Board has determined that the Veteran's hepatitis C, cirrhosis of the liver, and GERD more nearly approximate a 30 rating during the period beginning November 9, 2015. Entitlement to a 30 percent rating, but not higher, beginning November 9, 2015, is granted. TDIU Finally, entitlement to a total disability based on individual unemployability (TDIU) is an additional element of all claims for a higher rating in which the Veteran or the record raises the issue of such entitlement. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran raised the issue in a July 2012 telephone call to VA, citing several conditions for which he sought service connection, including his digestive conditions. The Veteran has not submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) documenting his educational and work history, but the claims file indicates that he worked full time until December 2008 and currently runs at least one, and possibly three, businesses. He reported working 12- to 15-hour days "most days of the week" in a January 2012 VAMC record. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income.... Marginal employment may be held to exist, on a facts-found basis including, but not limited to, employment in a "protected environment" such as a family business or sheltered workshop when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). A finding of entitlement to TDIU is dependent upon consideration of the impact of a Veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. § 4.16. Age is not a factor. 38 C.F.R. § 4.19. Here, the Veteran fails to meet the schedular eligibility requirements, as his combined rating is no worse than 30 percent disabling. Further, the Board finds no basis for referral for extraschedular consideration. The record reflects that Veteran was granted disability by the Social Security Administration beginning December 2008 due to mental disorders. Those conditions are not service connected. The Veteran's service-connected disabilities are limited to the disabilities of the digestive system addressed herein as well as erectile dysfunction. No examination identified any impact on his ability to work due to his service-connected conditions except an October 2020 VA examination, which indicated that the Veteran "still has a lot of gas and diarrhea which causes him to slow down some with activities such as lifting." The Veteran has not detailed how his service-connected disabilities affect his ability to work; the latest evidence in fact indicates he is working quite a bit. The Board finds that, at worst, the Veteran is capable of securing and following a substantially gainful occupation that does not require frequent or quick lifting. Entitlement to a TDIU during the entire appeals period is therefore not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.