Citation Nr: 21008938 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-25 055 DATE: February 18, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for hepatitis C is denied. FINDING OF FACT Throughout the pendency of the appeal, the Veteran’s hepatitis C has been manifested by daily fatigue, malaise, right upper quadrant pain and hepatomegaly. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7354 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to July 1976, June 2001 to July 2001, April 2005 to July 2005, December 2006 to May 2007, December 2007 to June 2008, January 2009 to March 2009, October 2009 to March 2010, January 2011 to August 2011, and March 2012 to February 2013. He also had National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A July 2015 rating decision assigned an effective date of February 14, 2013, the day after the Veteran’s release from active duty. In July 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in March 2019, when it was remanded for additional evidentiary development. 1. Entitlement to an initial rating in excess of 20 percent for hepatitis C Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran seeks a higher initial rating for his service-connected hepatitis C. Service connection for hepatitis C was established in a January 2014 rating decision and assigned an initial 10 percent rating, effective December 16, 2013, under Diagnostic Code 7354. See 38 C.F.R. § 4.114, Diagnostic Code 7354. In a May 2014 decision, the RO increased the initial rating to 20 percent, effective December 16, 2012. A July 2015 rating decision ultimately assigned an effective date of February 14, 2013, based on notification from the Defense Finance and Accounting Service (DFAS) that this date was his actual date of release from active duty. Diagnostic Code 7354 provides a 20 percent rating for hepatitis C manifested by 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 for hepatitis C 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 upper right 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 for hepatitis C 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 upper right quadrant pain) having a total duration of at least six weeks, but not occurring constantly, during the past 12-month period; and a 100 percent rating for hepatitis C manifested by near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. The term “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). 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 ‘‘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 Veteran seeks a higher initial rating for his hepatis C, asserting, in essence, that the frequency, severity and duration of his current symptoms are worse than reflected in the currently-assigned 20 percent rating. In June 2013 statements, he reported fatigue and weight gain of approximately 20 pounds in the past year since undergoing viral treatment for his hepatitis C and that an October 2012 liver biopsy showed grade 2, stage 2 fibrosis of the liver. In March 2014, June 2014 and October 2014 statements, he reported fatigue and additional symptoms noted in a medical internet article on hepatitis C, including arthritis, blurred vision, chills, dark urine, dry skin, dizziness “sometimes,” edema swelling of the hands, feet and legs, excessive gas, eye or eyesight problems, blurred vision or dry eyes, hot flashes, indigestion, inflammation in the joints, irritability “a lot”, itching, joint pain, mood changes or swings, memory loss, mental confusion, muscle aches “a lot” and weight gain. He stated he did not list all of these symptoms in his initial claim for benefits because he did not think it was necessary to list them to be assigned a higher rating. He asserted a higher rating is also warranted because he has stage 2, grade 2 fibrosis of the liver, which means his liver is half destroyed, and September 2013 laboratory studies show abnormal ALT and AST enzyme levels. During the July 2015 Board hearing, the Veteran stated he experiences all of the symptoms listed in the 40 percent rating criteria, including daily fatigue, malaise, nausea, vomiting, anorexia, arthralgia, hair loss on his arms and legs, blurred vision, upper abdominal pain and daily constipation. He stated that these symptoms are daily and identified in his records, although they were not always documented because they may not have been present at the time of treatment. He stated he has liver damage consisting of stage 2, grade 2 fibrosis liver scarring and abnormal ALT and AST levels, as shown on November 2014 bloodwork. He reported his symptoms were daily for a couple of years leading up to his Harvoni treatment and that, while his right upper quadrant pain subsided during Harvoni treatment, it would likely return once treatment ends because, even if the virus is gone, his liver is damaged and needs time to heal. He suggested that he experiences incapacitating episodes, during which he does not feel like getting out of bed or “doing things” and sleeps up to 13 hours. He stated he forces himself to do things during these episodes because he is a full time student and “does not have a choice.” He stated that the frequency of his incapacitating episodes is not accurately reflected in his treatment records. In a February 2016 statement, the Veteran reported that while his hepatitis C is not currently active, he continues to experience liver damage and residual symptoms of the disease, including daily fatigue and right upper quadrant pain, which has persisted for the past 3 weeks. In a May 2016 statement, he reported he continues to receive diagnostic testing at the VA for liver and abdominal pain. In a February 2019 statement, he reported his symptoms have worsened since 2016. Service treatment records show that the Veteran was diagnosed in August 2012 with chronic hepatitis C due to the cytomegalovirus while deployed to Afghanistan during active duty. Physical examination of the eyes, abdomen and neurological system was unremarkable at that time and the Veteran did not report any symptoms related to the condition, including weight loss or decreased appetite. No obvious signs of cirrhosis were shown on initial examination. Blood work in September 2012 revealed ALT at 112 and AST at 68 (normal ranges are 21-72 and 17-59, respectively and an October 2012 liver biopsy revealed chronic hepatitis with mild activity and periportal fibrosis consistent with hepatitis C-induced disease, grade 2, stage 2. See August 2012, September 2012, October 2012 and November 2012 service treatment records. A February 2013 treatment record indicates the Veteran reported feeling well and that the virus was undetectable. A February 2013 post-deployment health assessment notes the Veteran reported being somewhat bothered by fatigue and memory problems; he denied dimming of vision, stomach pain, shortness of breath, constipation, loose bowels, diarrhea, nausea, indigestion and trouble concentrating. A March 2013 laboratory report showed ALT at 36 and AST at 33. A May 2013 VA treatment record indicates the Veteran reported he did not have any problems with abdominal pain, nausea, vomiting, heartburn and that his appetite and weight were stable. He reported his energy was “a little bit low” and he was sleeping well. His weight was 222 pounds. Examination of the abdomen was unremarkable. A May 2013 laboratory report showed ALT of 248 and AST of 143. A July 2013 letter from a VA physician notes the Veteran participated in a 12-week Interferon clinical trial for hepatitis C; that the hepatitis C virus was undetected at treatment week 4 and remained undetected through the end of treatment; that the Veteran relapsed (the virus returned) by follow-up week 8 (March 2013); and that resistance mutations were detected at the time of relapse. Alternative treatment was recommended pending future FDA approval. A November 2013 VA treatment record to establish care reflects no reported complaints related to hepatitis C. Examination of the abdomen was unremarkable. The Veteran requested referral to the VA hepatitis C clinic. VA treatment records in November 2014 reflects complaints of fatigue and dry flaky scalp. Examination of the abdomen was unremarkable. Laboratory testing in November 2014 were positive for the hepatitis C virus and showed abnormal liver findings secondary to hepatitis C. A November 2014 laboratory report showed ALT at 111 and AST at 53. A December 2014 VA treatment record notes the Veteran reported feeling well and denied decreased appetite, weight loss and fatigue. The clinician noted there were no complaints of right upper quadrant pain, nausea, vomiting, diarrhea, constipation, change in bowel habits, abdominal pain, pale colored stools, heartburn or indigestion, and no evidence of anorexia, dietary restriction or incapacitating episodes. VA treatment records in 2015 show the Veteran underwent a 12-week antiviral treatment of Harvoni, from January 2015 to April 2015. A February 2015 VA treatment record notes the Veteran reported moderate fatigue that was not bothering him and that he was tolerating the treatment well. A February 2015 VA treatment record shows that liver function tests revealed the liver transaminases had normalized since starting Harvoni, that the Veteran was tolerating treatment well and that tiredness is a common side effect of treatment. VA treatment records in March 2015 and April 2015 show the hepatitis C virus was undetectable in laboratory studies. Three months after the end of antiviral treatment, July 2015 VA treatment recordsshow the Veteran reported feeling great; he denied decreased appetite, weight loss, fatigue, fever or chills, vision changes, confusion or memory loss, right upper quadrant pain, abdominal pain, nausea, vomiting, diarrhea, constipation, pale colored stools, heartburn, indigestion, arthralgias or myalgias. Examination of the abdomen and neurological system was unremarkable. It was noted the Veteran did not take medication to treat the hepatitis C. The clinician noted that recent laboratory findings showed the hepatitis C virus (viral load) was undetectable and liver function had normalized since Harvoni treatment. A July 2015 VA treatment record indicates the Veteran denied decreased appetite, weight loss, fatigue, right upper quadrant pain, nausea, vomiting or arthralgia. VA treatment records in January 2016 indicate that the Veteran denied fatigue, right upper quadrant pain, abdominal distension, fever, chills, difficulty focusing on tasks and peripheral edema; that he did not take medication to treat his hepatitis C; that hepatitis C was in remission and the viral load was undetectable. Physical examination of the abdomen and neurological system was unremarkable. It notes that a January 2016 abdominal ultrasound showed coarsened hepatic echotexture without suspicious hepatic mass identified. The clinician noted that as testing showed the hepatitis C virus was negative at 3 months post-Harvoni treatment and liver function tests had normalized since treatment, the Veteran was being discharged from the VA hepatitis C clinic. A February 2016 VA treatment record indicates complaints of increasing abdominal pain over the past 3 to 4 weeks in the region of his liver, right upper quadrant pain, some numbness of abdomen, and constipation and denial of weight loss. A March 2016 VA treatment record indicates reports of increasing right upper and lower quadrant abdominal pain and change in bowel habit. January 2017 VA treatment records reflect complaints of generalized fatigue over the last two months, reduction in energy level, sensation of fatigue, excessive sleeping. The Veteran denied recent weight changes, eye problems, bowel changes, abdominal upset, indigestion, focal joint swelling, fever and chills. The clinician noted the examination was relatively unremarkable and stated he was doubtful of a relapse of hepatitis C contributing to the Veteran’s symptoms based on the earlier viral studies. Laboratory testing in January 2017 showed the hepatitis C viral was undetectable and liver function was normal. The clinician noted complaints of fatigue and history of chronic hepatitis C, with successful achievement of sustained viral remission after prior treatment and that the virus is not expected to be seen again considering the length of time since completion of therapy. September 2017 VA treatment records indicate the Veteran reported overall feeling well with no changes in weight, vision or stools. Examination of the eyes, abdomen and neurological system were unremarkable. Laboratory studies showed low vitamin D levels but the comprehensive metabolic panel was normal. An October 2018 VA treatment record notes a history of hepatitis C successfully treated with Harvoni. Examination showed an 8 pound weight reduction compared to the prior year. A December 2018 VA treatment record indicates an ultrasound of the liver was normal with no suggestion of advanced liver disease. A November 2019 VA treatment record indicates successful treatment with Harvoni for hepatitis C; evidence of grade 2 liver disease in 2012 prior to treatment; and that the most recent ultrasound of the liver in December 2018 was normal. The clinician noted a 12 pound weight gain compared to the last visit, presently 230 pounds. Examination of the abdomen was unremarkable, laboratory studies demonstrate an unremarkable urinalysis and the comprehensive metabolic panel was unremarkable with the except of an AST at 35, although ALT at 53 was normal. The impression was history of hepatitis C with stage 2 fibrosis. A November 2019 VA treatment record shows the Veteran denied experiencing unplanned weight loss or weight gain greater than 10 pounds over the last two months and indicates normal liver function tests and normal ALT (53) and AST (35) levels. A November 2019 VA treatment record shows the Veteran reported he was still experiencing repercussions from his hepatitis C. Ultrasounds of the liver in December 2019 and August 2020 showed no concerning abnormalities or significant changes. An August 2020 VA treatment record indicated normal liver function and no reported complaints related to hepatitis C. The Veteran underwent VA examination in September 2013, January 2016 and December 2019. During a September 2013 VA General Medical examination, the examiner diagnosed chronic hepatitis C. The Veteran reported experiencing fatigue and constipation; he denied blurred vision, nausea, vomiting, abdominal pain, diarrhea, memory loss or weakness. The examiner noted that after discussion with the Veteran, the Veteran stated he has no problem with decreased energy and fatigue when he was active but became sleepy when at rest. Examination of the eyes, gastrointestinal system, neurological system and abdomen, to include the liver, were unremarkable, and no abnormalities were noted. Laboratory testing was positive for the hepatitis C virus and ALT and AST enzymes were noted as high. The Veteran reported no functional effects on occupation or routine daily activities. During a September 2013 VA liver examination, the examiner diagnosed hepatitis C. He noted current symptoms of intermittent right upper quadrant pain and fatigue; and indicated that continuous medication was not required for control of the Veteran’s liver conditions and that the Veteran has not had any incapacitating episodes (bed rest prescribed by a physician) due to his condition during the past 12 months. He noted a September 2012 ultrasound of the abdomen revealed mild to moderate hepatic steatosis and mild hepatomegaly without focal abnormalities but that there were no current signs or symptoms attributable to chronic or infectious liver disease. He noted a 4 millimeter scar of the right lateral upper abdomen from a 2013 liver biopsy. The examiner opined that the Veteran was not diagnosed with fatigue and that his description of current symptoms of “fatigue” is actually daytime somnolence for 20 years, which is most likely related to sleep apnea. He noted that, while the Veteran reported significant fatigue while undergoing therapy in 2012, which forced him to limit activities during that time with a more than 15 pound weight gain, the Veteran currently reported being able to work his 8.5 hour shift of manual labor without difficulty, with no limits on walking and standing, but that he becomes sleepy if he sits down, and that daytime somnolence had been present in varying degrees since his diagnosis of sleep apnea. During a January 2016 VA liver examination, the examiner diagnosed hepatitis C. The examiner indicated that continuous medication was not required for control of the Veteran’s liver condition and that the Veteran did not have any incapacitating episodes (bed rest prescribed by a physician) due to his condition during the past 12 months. The examiner noted there were no signs or symptoms attributable to chronic or infectious liver disease. He noted that diagnostic testing performed at the time of the examination indicated the hepatitis C virus was undetected and that the condition did not impact occupational or routine daily activities. During a December 2019 VA liver examination, the examiner diagnosed hepatitis C. He noted current symptoms of daily fatigue, malaise and daily right upper quadrant pain. He indicated that continuous medication was not required for control of the Veteran’s liver conditions and that the Veteran did not have any incapacitating episodes (bed rest prescribed by a physician) due to his condition during the past 12 months. He noted the condition did not require dietary restriction or result in other indications of malnutrition and noted a history of splenectomy in 1989 for ruptured spleen in a motorcycle accident and daily prophylaxis medication since 1989. He noted there were no signs or symptoms attributable to chronic or infectious liver disease, and no evidence of scarring. He noted that a December 2019 endoscopic ultrasound was negative and laboratory studies performed at the time of the examination were normal, including AST and ALT levels. The examiner opined that the Veteran’s symptoms of fatigue and abdominal pain were related to the hepatitis C and less likely due to other conditions unrelated to the Veteran’s hepatitis C virus history, reasoning that his other current diagnoses do not explain these complaints and his history of the hepatitis C virus is the only current diagnosis that is causal for these residuals. After reviewing the evidence, including the Veteran’s statements, VA examinations and medical treatment records, the Board finds that the criteria for an initial rating in excess of 20 percent for hepatitis C have not been more nearly approximated. The preponderance of evidence shows that, throughout the appeal period, the Veteran’s hepatitis C has manifested in intermittent fatigue and malaise, intermittent right upper quadrant pain and hepatomegaly (unhealed liver). It has not manifested in anorexia, minor weight loss, cirrhosis or liver malignancy; has not required dietary restriction or continuous medication; and has not resulted in incapacitating episodes of a duration of at least four weeks during a 12-month period. Thus, during the pendency of the appeal, the criteria for a 20 percent rating, but not higher, is warranted. In making this determination, the Board reviewed and considered the Veteran’s assertions in support of his claim, including his July 2015 Board testimony and statements on appeal, in which he asserts that he experiences all of the symptoms consistent with a 40 percent rating, including fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain, as well as hair loss on his arms and leg, blurred vision and daily constipation. However, the Board finds that the Veteran’s assertions are not consistent with the medical evidence. While complaints of fatigue and right upper quadrant pain are well-documented in the Veteran’s voluminous medical treatment records, they also show the Veteran consistently denied nausea, vomiting, diarrhea, indigestion, vomiting, constipation, vision problems, memory problems, and arthralgia and there is no indication of anorexia or dietary restrictions. See February 2013, November 2014, December 2014, July 2015, January 2016 and January 2017 VA treatment records. Further, while an October 2018 VA treatment record notes an 8 pound weight loss and a November 2019 VA treatment record notes a 12 pound weight gain, the Veteran’s weight was noted as stable in August 2012, December 2014, July 2015, January 2016, January 2017 and September 2017 VA treatment records, and there was only an 8 pound weight gain during the pendency of the appeal, specifically from 222 pounds in May 2013 to 230 pounds in November 2019. Additionally, all three VA liver examiners indicated that continuous medication was not needed for control, and September 2013 and July 2015 VA treatment records note the Veteran reported he did not take continuous medication for the condition. The Board also considered the Veteran’s testimony suggesting he experiences episodes of incapacitation due to his hepatitis C condition. While the Veteran is competent to report there are times that he does not feel like getting out of bed and sleeps more than usual, a review of the medical evidence does not show any incapacitating episodes requiring bed rest as prescribed by a physician, and the September 2013, January 2016 and December 2019 VA examiners indicated that the Veteran did not have any incapacitating episodes due to his hepatitis C. Further, although the record shows stage 2, grade 2 fibrosis of the liver in 2012 and abnormal ALT and AST levels and positive viral load intermittently throughout the appeal period, those findings were considered by the RO when assigning a 20 percent rating. Additionally, all three VA examiners indicated there was no evidence of chronic or infectious liver disease. In fact, the evidence shows that, since 2015, liver function normalized, the viral load has improved, and the Veteran has achieved sustained remission of his hepatitis C. See January 2017, October 2018, December 2018, November 2019 and August 2020 VA treatment records. While the Veteran is competent to report the presence of symptoms, the Board finds the medical evidence of record is more probative as to the presence of current symptoms and level of impairment caused by the hepatitis C than the Veteran’s statements. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Thus, based on the record before it, the Board finds that a rating in excess of 20 percent is not warranted under Diagnostic Code 7354. The Board has considered whether a separate, compensable rating is warranted for scars, given that the September 2013 VA examiner noted a scar of 4 millimeters caused by the Veteran’s 2012 liver biopsy. However, in this case, a separate compensable rating is not warranted, as the examiner indicated the scar was not painful or unstable, and the total area of the scar was not greater than 39 square cm (6 square inches). As such, the assignment of a separate, compensable rating for scar is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7804. In sum, the Board concludes that the preponderance of probative evidence more nearly approximates an initial rating of 20 percent throughout the appeal period, and the claim for a higher rating is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a rating in excess of that already assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As a final matter, in the appellate briefs the Veteran’s representative provided a conclusory statement requesting the maximum benefit allowed by law and regulation including an extraschedular rating based on the exceptional and unusual symptoms and severity of his service-connected disability. While the Veteran has reported various symptoms, the most credible and probative evidence indicates that his hepatitis C is manifested by symptoms of intermittent fatigue, malaise, right upper quadrant pain and hepatomegaly. Thus, his hepatitis C manifestations are reasonably contemplated by Diagnostic Code 7354. Therefore, the evidence does not present such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected hepatitis C are inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.