Citation Nr: 21007105 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-03 599 DATE: February 8, 2021 ORDER Entitlement to an initial compensable rating for service-connected epistaxis is denied. Entitlement to an initial rating greater than 20 percent for service-connected chronic hepatitis B is denied. Entitlement to an initial rating greater than 30 percent for service-connected dysmenorrhea is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective July 23, 2010. REMANDED Entitlement to a TDIU prior to July 23, 2010 is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s recurrent epistaxis has not resulted in greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. For the entire appeal period, the Veteran’s Hepatitis C is not manifested by daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. 3. The Veteran’s dysmenorrhea has been assigned the maximum schedular rating assignable since the effective date of service connection. 4. For the time period beginning on July 23, 2010, the Veteran’s service-connected disabilities prevented her from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for service-connected epistaxis have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6599-6522 (2020). 2. The criteria for entitlement to an initial rating greater than 20 percent for service-connected chronic hepatitis B have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2014); 38 C.F.R. § 4.114, DC 7354 (2020). 3. The criteria for entitlement to an initial rating greater than 30 percent for service-connected dysmenorrhea have not been met. 38 U.S.C. § 1155, 5105 (2014); 38 C.F.R. § 4.116, DC 7699-7613 (2020). 4. The criteria for entitlement to a TDIU, effective July 23, 2010, have been met. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 2001 to January 2006. This matter was initially before the Board in January 2018, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded VA examinations for her claims. The matter returned to the Board in February 2020, where her claims were granted in part and remanded in part. The Board determined that SSA records were needed to adjudicate the Veteran’s claims. Such development has been completed with notice from SSA that medical records do not exist. The matter is once again before the Board for further appellate review. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, including employment, by comparing his/her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). 1. Entitlement to an initial compensable rating for service-connected epistaxis. The Veteran appeals the denial of a compensable disability rating for her service-connected epistaxis. Notably, epistaxis is a disability that is not listed under VA’s rating schedule. Where the particular service-connected disability is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. In this regard, the Veteran’s service-connected epistaxis is rated under DC 6599-6522. Under DC 6522, a rating of 10 percent is warranted for allergic or vasomotor rhinitis manifested without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side; and 30 percent is warranted for allergic or vasomotor rhinitis manifested with polyps. 38 C.F.R. § 4.97, DC 6522. Turning to the evidence, the Veteran submitted a Disability Benefits Questionnaire (DBQ) in July 2013 from her private medical practitioner, B.O. The practitioner diagnosed the Veteran with minimal epistaxis. He reported the Veteran’s symptoms of nosebleeds. The examiner opined that the Veteran did not have a 50 percent obstruction of the nasal passage on both sides due to epistaxis. However, the examiner did notate prominent blood vessels revealed in her endoscopy. The practitioner noted that “simple hydration” and nasal sprays have improved the Veteran’s symptoms. Additionally, he stated that the Veteran’s nosebleeds occur when she blows her nose, and she admits to excessively blowing her nose. Lastly, the examiner stated that her epistaxis does not impact her ability to work. The Veteran was afforded a VA examination in September 2019. The Veteran reported moderate to severe nose bleeds every one to two months. The examiner did not render an opinion as to whether there was greater than 50 percent obstruction of the nasal passage on both sides due to epistaxis. However, the examiner noted that the Veteran’s nose condition impacted her ability to work. She stated that she experiences fatigue due to losing sleep at night during nosebleeds and is unable to concentrate because she gets headaches after nosebleeds. The Veteran was afforded a VA examination in February 2020. The Veteran reported nosebleeds once or twice a week and uses nasal saline rinse for treatment. The examiner noted that the Veteran’s epistaxis did not impact her ability to work. Relevant treatment records reflect the Veteran’s complaint of frequent nosebleeds. In a June 2010 clinic record, she reported daily nosebleeds that have gotten worse since 2006. The physician noted that there was no nasal obstruction. In an October 2011 VA treatment record, she reported spotting of blood on her nasal secretion when blowing her nose. She stated that she uses saline irrigation, which have helped “somewhat.” In a March 2011 VA treatment note, the Veteran reported seeing “blood streaks” when blowing her nose. Her treating physician noted that there was no nasal obstruction. According to the Veteran’s lay statements, discussing her symptomatology, she stated that she suffers from pain due to nosebleeds. See July 2010 Correspondence. In a January 2020 statement submitted by the Veteran, she reported headaches and sinus pain. She added that while her symptoms do not occur daily, when they do occur, they can “last for months when it flares up every year.” Upon review of the evidence of record, the Board finds that a compensable rating is not warranted at any time during the period on appeal. The Veteran’s July 2013 DBQ, as well as VA treatment records do not show obstruction greater than 50 percent of the nasal passage on both sides or complete obstruction on either side, permanent hypertrophy of the nasal turbinates, nasal polyps or granulomatous conditions. In fact, her VA treatment records indicate no nasal obstruction. See e.g. November 2011 Treatment Record. The Board has also considered whether there is any other schedular basis for granting a compensable rating but has found none, as the evidence of record does not support a finding that the Veteran has a diagnosis of sinusitis during the period on appeal to warrant a rating under the General Rating Formula for Sinusitis (DCs 6510 to 6514). 38 C.F.R. § 4.97. The Board acknowledges the Veteran’s assertions that her disability is more severe than evaluated to include her reports of pain, headaches, and nosebleeds. The Veteran is competent to report her symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not competent to determine the severity of her nasal condition, as it is outside the scope of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the most probative evidence consists of examination reports and clinic records prepared by trained medical professionals and such evidence demonstrates that the currently assigned rating is appropriate. In sum, the Board finds that a compensable rating for epistaxis is not warranted at any time during the appeal period. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the matter must be denied. 38 U.S.C. § 5107. 2. Entitlement to an initial rating greater than 20 percent for service-connected chronic hepatitis B. The Veteran seeks a higher disability rating for her service-connected chronic hepatitis B. She is currently rated at 20 percent disabling. The Veteran is rated under DC 7345, which pertains to chronic liver disease without cirrhosis. A noncompensable rating is warranted when hepatitis is non symptomatic. 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. 38 C.F.R. § 4.114. A 20 percent rating is warranted when there is 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 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 when there is 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 rating is warranted when there are near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). For the purpose of evaluating conditions under DC 7345, “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, Diagnostic Code 7345, Note 2. Turning to the evidence, the Veteran was afforded a VA examination in May 2010. The Veteran’s symptoms include daily fatigue and mild abdominal pain. The Veteran denied malaise, nausea, vomiting, anorexia, and arthralgia. The examiner reported that the Veteran did not have incapacitating episodes, requiring bed rest in the past 12 months. Additionally, there was no evidence of hepatoma. The Veteran was afforded another VA examination in September 2019. Right upper quadrant pain was reported as a symptom attributable to her disability. The examiner found that continuous medication is required to control the Veteran’s disability. The Veteran did not have any incapacitating episodes due her condition during the past 12 months. It was noted that the Veteran did have a scar on her right lateral upper abdomen from a liver biopsy. Additionally, her hepatitis B impacted her ability to work, due to severe upper abdominal pain and diarrhea. The Veteran was afforded a VA examination in February 2020. The Veteran reported intermittent bouts of loose stooling associated with her hepatitis B. The examiner notated the following: “non-bloody, non-mucous, diarrhea of near constant nature by report of Veteran, associated with her period.” The Veteran stated that severity and frequency of her bowel episodes were frequent. The examination revealed that the Veteran did not have weight loss, malnutrition or serious complications/general health effects attributable to her intestinal condition. Additionally, she did not have any incapacitating episodes due her condition during the past 12 months. Treatment records throughout the appeal period show that the Veteran had chronic abdominal pain, fatigue, nausea, decreased appetite, and diarrhea. For example, in an October 2017 VA medical record, the Veteran was seen in the emergency room for abdominal pain. Similarly, in September 2014 and October 2019, she was seen in the emergency room for abdominal pain and diarrhea. In a November 2019 treatment record, she reported abdominal pain and diarrhea. The Veteran’s lay statements also confirm her reports of symptomatology. According to relevant lay statements and a January 2017 hearing, the Veteran’s symptoms consist of chronic nausea, abdominal pain, diarrhea, and fatigue. She stated that she oversleeps daily due to fatigue, which has been occurring for years. As a result of her disability, she is limited to a restricted diet. Upon review of the evidence, the Board finds that a disability rating in excess of 20 percent is not warranted. Although the record shows that the Veteran’s Hepatitis B has been manifested by symptoms of fatigue and abdominal pain, there is no showing of anorexia, weight loss and/or hepatomegaly. Additionally, the record does not contain any evidence of 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 rating of 40 percent is warranted when there is a showing of daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly. In light of the conjunctive “and” in this set of criteria, all criteria must be met to establish entitlement to a 40 percent rating on this basis. Here, the lay and/or objective evidence does not support a finding of anorexia, weight loss and/or hepatomegaly as symptoms of the Veteran’s Hepatitis B. The Board acknowledges the Veteran’s assertions that her disability is more severe than evaluated to include her reports of pain and functional limitations. The Veteran is competent to report her symptoms and has presented credible testimony. Layno, 6 Vet. App. at 469. However, she is not competent to determine the severity of her hepatitis B condition, as it is outside the scope of a lay person. Jandreau, 492 F.3d at 1372. The Board finds that the most probative evidence consists of examination reports and clinic records prepared by trained medical professionals and such evidence demonstrates that the currently assigned rating is appropriate. The Board has also considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms but has found none. In this case, the Board finds no other provision upon which to assign a rating higher than 20 percent disabling for Hepatitis B. In sum, the Board concludes that the preponderance of the evidence is against the award of a disability rating greater than 20 percent throughout the period on appeal. The claim for an initial rating higher than 20 percent disabling is denied. 3. Entitlement to an initial rating greater than 30 percent for service-connected dysmenorrhea. Since the effective date of service connection, the Veteran’s dysmenorrhea has been rated as 30 percent disabling under hyphenated DC 7629-7613, which provides that a maximum 30 percent rating is warranted for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116, DC 7615. Because that is the maximum schedular rating for dysmenorrhea pursuant to DC 7615, a higher rating cannot be assigned under that diagnostic code. The Board has considered whether the Veteran could be entitled to a higher rating under a different diagnostic code. However, the only other potentially applicable diagnostic code, which is Diagnostic Code 7629, is not warranted as the medical records do not reflect a diagnosis of endometriosis. See November 2011, July 2012, September 2019, and February 2020 VA Examinations. Additionally, the record does not contain any evidence that the Veteran underwent a laparoscopy. While the Board acknowledges the severity of the Veteran’s disability and reported symptomatology, the claim must be denied as the Veteran is already in receipt of the highest rating possible. 4. Entitlement to a TDIU is granted, effective July 23, 2010. The Veteran appealed the denial of a higher rating for epistaxis, dysmenorrhea, and hepatitis B. In light of the decisions in Harper v. Wilkie, 30 Vet. App. 356 (2018) and Payne v. Wilkie, 31 Vet. App. 373 (2019), the Board must consider whether a TDIU is warranted prior to September 19, 2019. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran met the criteria for TDIU in July 23, 2010, rated as 80 percent disabling. At that time, she was service-connected for PTSD, rated as 50 percent disabling; a 30 percent rating for dysmenorrhea; a 30 percent rating for right elbow impairment; a 20 percent rating for hepatitis B; a 10 percent rating for tinnitus; a 10 percent rating for painful scar; and a noncompensable ratings for epistaxis. The evidence shows that the Veteran worked as a waitress after service until October 2007 and has not worked since then. Further, the evidence reflects training as a pharmacy technician, although it is uncertain whether she completed her certification. The Board acknowledges that “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Additionally, as noted in Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), TDIU must be addressed in a practical manner. Here, based on the review of medical evidence and lay statements of record, it is unlikely that the Veteran would be able to find employment that would accommodate her service-connected disabilities. The Board finds, in resolving any reasonable doubt, that the evidence supports the conclusion that the Veteran’s service-connected disabilities prevented her from securing and following substantially gainful employment. In reaching this determination, the Board notes the United States Court of Appeals for the Federal Circuit held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). REASONS FOR REMAND 1. Entitlement to a TDIU prior to July 23, 2010 is remanded. As noted above, the Veteran’s epistaxis, dysmenorrhea, and hepatitis B claims have been pending, and the RO granted entitlement to TDIU, effective September 19, 2019. See October 2020 Rating Decision. The Court has held that the issue of TDIU is part and parcel of a Veteran’s appeal for a higher rating and thus the award of TDIU for a portion of the appeal period does not render the issue moot. See Payne, 31 Vet. App. at 373; see also Harper, 30 Vet. App. at 356. In light of the Court’s rulings, the Board must now consider this issue for the period prior to July 23, 2010. Prior to July 23, 2010, the Veteran did not meet the criteria for TDIU. Nonetheless, a TDIU may be awarded on an extraschedular basis if a Veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. In this case, an extraschedular rating has not been considered by the RO and a remand is necessary for the RO to determine whether to submit the claim for extraschedular consideration. The matters are REMANDED for the following action: Consider whether to submit the Veteran’s claim of entitlement to a TDIU prior to September 19, 2019 to the Director, Compensation, for extraschedular consideration. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.