Citation Nr: 21015019 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-08 673 DATE: March 16, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected hepatitis C is denied. FINDING OF FACT Since the initial grant of service connection, the Veteran's hepatitis C has been manifested by no more than intermittent fatigue, malaise, nausea, and right upper quadrant pain, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.112, 4.113, 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1982 to August 1985. This matter is on appeal from a September 2015 rating decision and was previously remanded by the Board of Veterans' Appeals (Board) in October 2018. The Veteran contends that this disability warrants a rating somewhere between 20 percent and 60 percent. See October 2015 notice of disagreement; February 2016 VA Form 9. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings, in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hepatitis C is rated under 38 C.F.R. § 4.114, Diagnostic Code 7354, when there is serologic evidence of hepatitis C infection and the following signs and symptoms due to hepatitis C infection. A 10 percent rating is assigned for intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. A 20 percent rating is warranted if the disease is productive of 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 twelve-month period. A 40 percent disability rating is warranted if the disease is productive of 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 assigned for 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. Finally, a 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Following the criteria, Note (1) indicates that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354. In addition, Note (2) provides that, for purposes of evaluating conditions under Diagnostic Code 7354, an incapacitating episode means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Under 38 C.F.R. § 38 C.F.R. § 4.112, minor weight loss means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term substantial weight loss means a loss of greater than 20 percent of the individuals' baseline weight, sustained for three months or longer." Baseline weight means the average weight for the two-year period preceding the onset of the disease. VA treatment records from 2013 through 2015 show that the Veteran’s hepatitis C was “asymptomatic.” He regularly denied fever, chills, sweats, weight changes, and appetite changes. The Veteran reported fatigue in January 2015, but denied fatigue on numerous occasions. The Veteran first sought treatment for hepatitis C in October 2015, and at that time, he reported good appetite and stable weight. The physician noted that he was “asymptomatic for liver disease” and that he denied melena, hematochezia, nausea, vomiting, abdominal pain, lower extremity edema, chest pain, constipation, and diarrhea. In December 2015, the Veteran reported symptoms of fatigue, but noted that he only experienced fatigue “several times a month” and denied fatigue on a daily basis. The Veteran was afforded a VA examination in August 2015. Continuous medication was not required for control of the Veteran's hepatitis C. Current signs or symptoms attributable to hepatitis C included intermittent fatigue, malaise, nausea, and right upper quadrant pain. The examiner determined that the Veteran had incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the hepatitis C during the prior 12 months that lasted less than one week. He did not have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis. The Veteran did not have a liver injury and was not a liver transplant candidate, was not hospitalized awaiting transplant, and had not undergone a liver transplant. There were no pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the condition. An August 2014 computed tomography (CT) scan revealed mildly enlarged periportal and gastrohepatic ligament lymph nodes measuring up to 1.1 centimeters (cm.) in short axis, nonspecific and possibly related to underlying liver disease; and heterogeneous enlarged prostate gland. Regarding functional impairment, the Veteran’s hepatitis C impacted his ability to work in that he missed many days of work due to the abdominal pain, discomfort and other symptoms. VA treatment records show that the Veteran underwent treatment for his hepatitis C from April to June 2016. During that time, the Veteran reported that he was feeling well with good appetite and stable weight. He denied melena, hematochezia, nausea, vomiting, abdominal pian, lower extremity edema, chest pain, constipation, and diarrhea. An October 2016 record and a February 2017 infectious disease note reveal that the Veteran completed treatment for chronic hepatitis C from April to June 2016 with Ledipasvir 90 mg po daily/Sofosbuvir 400 mg po daily (Harvoni). HCV RNA Quant from September 28, 2016 (less than 12 weeks following completion of treatment), and again on January 25, 2017 show that hepatitis C was "[n]ot detected". The provider noted that it appeared that the Veteran sustained a virologic response following the treatment for his hepatitis C A June 2017 record notes that the Veteran’s hepatitis C was asymptomatic and stable with a history of Harvoni 206 treatment and viral load not detected. An August 2017 record notes that hepatitis C was treated and cured and that HCV RNA testing on July 12, 2016 showed that hepatitis C was not detected. The Veteran underwent hepatitis C treatment from April to June 2016. Treatment records dated in November 2017, December 2017, December 2018, and January 2019 noted a past medical history of hepatitis C. On July 2019 VA examination, the examiner noted that the Veteran was treated for hepatitis C in 2016 and that the condition had been undetectable since 2017. Continuous medication was not required for control of the Veteran's hepatitis C. He did not have current signs or symptoms attributable to chronic or infectious liver diseases. The examiner determined that the Veteran did not have incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver conditions during the prior 12 months. He did not have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis or cirrhotic phase of sclerosing cholangitis. The Veteran did not have a liver injury and was not a liver transplant candidate, was not hospitalized awaiting transplant, and had not undergone a liver transplant. There were no pertinent physical findings, complications, conditions, signs, symptoms, or scars related to this condition. A July 2017 hepatitis C viral titers revealed that hepatitis C was undetectable. The Veteran’s liver condition did not impact his ability to work. Based on the evidence of record, the Board finds that an initial disability rating greater than 10 percent is not warranted for the Veteran’s hepatitis C. As noted above, a rating in excess of 10 percent is not warranted unless there are daily symptoms, such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain or incapacitating episodes. While the evidence shows findings of intermittent fatigue, malaise, nausea, and right upper quadrant pain, there is no objective evidence suggesting that such symptoms occurred on a daily basis. Further, none of the evidence of record suggests that the Veteran experienced incapacitating episodes of symptoms having a total duration of at least two weeks in the prior 12-month period. In that regard, the August 2015 and the July 2019 VA examiners reported that the Veteran experienced incapacitating episodes lasting less than one week in the prior 12-month period, or none at all. Therefore, the Board finds that the Veteran’s symptoms have not more closely approximated a rating in excess of 10 percent at any time during the rating period, and a rating in excess of 10 percent is denied. The Board acknowledges the Veteran’s lay statements that his hepatitis C caused him “constant flu-like illness and chronic fatigue” “for at least 15 years.” However, the Veteran’s VA treatment records directly contradict his lay statements of constant fatigue, as the Veteran frequently denied experiencing fatigue and was regularly found to be asymptomatic for hepatitis C symptoms. While there are a few sporadic reports of fatigue in the VA treatment records, the Veteran clarified in a December 2015 treatment record that he did not experience fatigue on a daily basis, noting that his fatigue occurred only “several times a month.” As the Veteran’s lay statements of fatigue are contradicted by his lay statements documented in the VA treatment records, the Board does not afford the Veteran’s lay statements significant probative value. Moreover, there is no evidence of anorexia or incapacitating episodes in the record. In the absence of such evidence, an initial disability rating greater than 10 percent for hepatitis C cannot be granted. The Board has considered potential ratings under other diagnostic codes, to include a separate rating for cirrhosis or malignancy of the liver. However, there is no evidence suggesting that the Veteran experienced cirrhosis or malignancy of the liver at any point in the rating period on appeal. Thus, separate ratings for cirrhosis or malignancy of the liver are not warranted. 38 C.F.R. § 4.114, Diagnostic Code 7354, Note 1. Therefore, the Board finds that the Veteran’s hepatitis C disability does not more closely approximate symptoms warranting a rating in excess of 10 percent during the rating period on appeal. Accordingly, as the preponderance of the evidence is against the assignment of a higher rating, the claim for an increased rating must be denied. 38 U.S.C. § 5107. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Crohe, 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.