Citation Nr: 21029898 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 12-08 155A DATE: May 17, 2021 ORDER A rating of 20 percent, for the period from December 8, 2008 to March 1, 2012, for hepatitis C is granted. A rating of more than 60 percent, effective March 2, 2012, for hepatitis C is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective April 25, 2012. FINDINGS OF FACT 1. With resolution of the doubt in his favor during the period from December 8, 2008 to March 1, 2012, the Veteran's hepatitis C has been characterized by daily fatigue, malaise, and anorexia without weight loss or hepatomegaly requiring continuous medication. 2. During the period effective March 2, 2012, the Veteran's hepatitis C has been characterized by no more than fatigue/malaise, daily nausea, and intermittent arthralgia with no incapacitating episodes. 3. With resolution of the doubt in his favor, effective April 25, 2012, the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for the period from December 8, 2008 to March 1, 2012, for service-connected hepatitis C have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R.§§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7354 (2020). 2. The criteria for a rating of more than 60 percent, effective March 2, 2012, for hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R.§§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.114, Diagnostic Code 7354 (2020). 3. The criteria to establish a TDIU have not been approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1974 to December 2002. Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). The Veteran's service-connected hepatitis C is rated under Diagnostic Code 7354. The criteria set forth under this diagnostic code are intended to rate serologic evidence of a hepatitis C infection and the signs and symptoms due to such an infection. 38 C.F.R. § 4.114, Diagnostic Code 7354. See 38 C.F.R. § 4.114, Diagnostic Codes 7345, 7354. Under Diagnostic Code 7354, 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, Diagnostic Code 7354. A 20 percent rating is warranted for 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. Id. A 40 percent rating is warranted for 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. Id. A rating of 60 percent is warranted 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. Id. A rating of 100 percent is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. For purposes of evaluating conditions under Diagnostic Code 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See 38 C.F.R. § 4.114, Diagnostic Code 7354, Note (2). The Board of Veterans' Appeals (Board) remanded the Veteran's case in May 2018 to obtain missing medical records and new VA examinations. In a March 2012 VA examination, the Veteran stated that he had a needle biopsy performed in January 2009. It appears the Veteran was referring to a biopsy performed in January 2010, which is summarized below. In a May 2009 liver examination, the Veteran reported that he had not been prescribed bedrest or had an incapacitating episode for the previous 12 months. He reported no non-sedentary activities. He reported no current treatment, but reported daily and chronic fatigue; nausea, anorexia, and right upper chest pain. The Veteran reported that his weight had fluctuated between 150 and 170 pounds in the previous 12 months. The examiner reported that the Veteran was then 178 pounds and he was "well developed" and "well nourished." His abdomen had no areas of tenderness or organomegaly. There was no evidence of ascites or of portal hypertension. There were also no other signs of liver disease and no evidence of malnutrition. A January 2010 liver biopsy and colonoscopy indicated that the Veteran had a normal colonoscopy but had a diagnosis for hepatitis C. At the biopsy, the Veteran noted a good appetite and stated that he was asymptomatic. The Veteran also noted no weight loss, no blood in his stool, and no abdominal pain. In numerous treatment notes from July 2011 to February 2014, the Veteran was noted to have no head, neck, cardiovascular, pulmonary, genitourinary, musculoskeletal, or skin symptoms. The clinician noted that the Veteran was well-nourished and in no acute distress. In March 2012, the Veteran was afforded a VA examination. He then weighed 173.6 pounds. His abdomen was without palpable tenderness, masses or organomegaly. The Veteran was noted to experience symptoms including intermittent fatigue/malaise, daily nausea, intermittent arthralgia, and weight loss. The examiner noted that the Veteran did not have incapacitating episodes during the preceding 12 months. The examiner noted that the hepatitis itself does not impact the Veteran's ability to work. However, treatments cause symptoms such as diarrhea, insomnia, fatigue, and flu-like symptoms with prescribed Ribavirin. The examiner also noted that the Veteran experienced nausea and headache with use of Victrelis. The Veteran reported that he completed treatment by Ribavirin and interferon in 1999, but had not received any other treatment. However, the examiner noted that medical records indicated that in late 2009, the Veteran began interferon and Ribavirin treatment and in January 2010 the Veteran was prescribed on Incivek In a March 2012 addendum, the examiner reported the Veteran had intermittent fatigue, intermittent malaise, and daily nausea. She noted the Veteran had lost approximately five pounds from March 2011 to March 2012. She also confirmed the Veteran was prescribed Ribavirin, peginterferon, Victrelis and Incivek. She reported the Veteran had incapacitating episodes due to liver conditions within the previous 12 months, and that there were "daily" and "minimal" after interferon injections. However, she noted that these treatments were "continuing." She also indicated the Veteran's hepatitis disorder was then shown to be evaluated at stage III fibrosis. The Veteran noted that he could tolerate the effects of Ribavirin and Victrelis with minimal side effects but that his symptoms are compounded by other medication. The Veteran stated that he had been retired since 2010. The examiner noted that treatment records beginning August 2008 indicate that the Veteran was also routinely seen from November 2012 to November 2014 for hepatitis C. The clinician noted no complaints of pain, headache, insomnia, or fatigue. The clinician also stated the Veteran had no symptoms of fever, chills, weight gain, nausea, vomiting, abdominal pain, diarrhea, or other symptoms. In a December 2014 treatment note, the Veteran was noted to have increased weight gain over the preceding year and experienced fatigue. In July 2017, the Veteran was afforded a VA examination. The Veteran was noted to have a diagnosis of hepatitis C following a routine work up in the 1990s that has since resolved following treatment with Harvoni. The examiner stated that the Veteran had no functional limitations and no objective evidence to sustain a diagnosis of any impairment in the body which would render the average person unable to follow a substantially gainful occupation. The examiner noted that the Veteran had no incidents of incapacitating episodes within the preceding 12 months. However, the Veteran reported general malaise and "night sweats" since he was serving on active military duty, although the examiner noted that he was unable to differentiate if this symptom is due to age or his past condition. A September 2019 treatment note indicates that the Veteran's chronic hepatitis was then undetectable because of 24 weeks of treatment with Sovaldi. The Board will afford the Veteran the benefit of the doubt and grant a 20 percent rating. The Veteran's claim was received in December 2008 and he was afforded a VA examination in May 2009. The Veteran's report of his symptoms at that time approximated the criteria for the establishment of a 20 percent rating. He noted that he had daily, "chronic" fatigue, malaise (as suggested by his report of no non-sedentary activities), and anorexia. Although he reported that he had not been prescribed bedrest or had an incapacitating episode for the previous 12 months, Diagnostic Code 7354 provides alternative symptoms, as indicated by the word "or" that would support a 20 percent rating, and the Veteran's report of fatigue, malaise-like symptoms and anorexia fits such criteria without the need to demonstrate weight loss. It also appears that on a relatively continuous basis, the Veteran was prescribed medication for treatment of his disorder. The Board will grant the benefit of the doubt in his favor in this respect. His reports of using prescribed medications appear to have resulted in periodic improvements but additional side-effects that also continue to cause fatigue, nausea, and anorexia. During the period effective March 2, 2012, the Veteran's hepatitis C has been characterized by no more than intermittent fatigue/malaise, daily nausea, intermittent arthralgia, and weight loss. The Veteran was also noted to have no incapacitating episodes. A VA examiner indicated that the Veteran's condition had resolved, and a separate clinician noted that the Veteran's condition was undetectable. The preponderance of the evidence is against the assignment of a rating greater than 20 percent under Diagnostic Code 7354. The Veteran's disease did not manifest in hepatomegaly or right upper quadrant pain such that would warrant consideration of a 40 percent rating. TDIU VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Effective April 25, 2012, the Veteran's combined service-connected disability rating is 80 percent, comprised of 60 percent evaluation for Hepatitis C; a 50 percent evaluation for a mood disorder and a zero percent evaluation for hearing loss of the left ear. The Board has reviewed the evidence and under the benefit-of-the-doubt doctrine, will grant the claim for a TDIU, effective April 25, 2012. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wozniak, Associate Attorney 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.