Citation Nr: 21040741
Decision Date: 07/06/21	Archive Date: 07/06/21

DOCKET NO. 17-36 365A
DATE: July 6, 2021

ORDER

Entitlement to a compensable initial rating for hepatitis C, prior to June 1, 2017 is denied.

Entitlement to a rating in excess of 40 percent for hepatitis C since June 1, 2017 is denied. 

Entitlement to a compensable initial rating for cirrhosis prior to January 21, 2020 is denied. 

Entitlement to a 10 percent rating for cirrhosis since January 21, 2020 is granted, subject to the laws and regulations governing the award of monetary benefits. 

Entitlement to an initial rating in excess of 30 percent for thrombocytopenia prior to February 15, 2017 is denied.

Entitlement to a compensable rating for thrombocytopenia since February 15, 2017 is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is denied. 

FINDINGS OF FACT

1. Prior to June 1, 2017, hepatitis C was not manifested by 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.

2. Since June 1, 2017, hepatitis C was not 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 right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly.

3. Prior to January 21, 2020, cirrhosis was not manifested by symptoms such as weakness, anorexia, abdominal pain, and malaise, independent of symptoms contemplated by the rating assigned for hepatitis C.

4. Since January 21, 2020, cirrhosis was manifested by symptoms such as weakness and abdominal pain, but not by portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and minor weight loss, independent of symptoms contemplated by the rating assigned for hepatitis C.

5. Prior to February 15, 2017, the Veteran's thrombocytopenia was not manifested by a platelet count less than 70,000.

6. Since February 15, 2017, the Veteran's thrombocytopenia was not manifested by a platelet count less than 100,000.

7. The preponderance of the evidence is against finding that the Veteran's service-connected disabilities were so severe as to preclude all forms of substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial compensable rating for hepatitis C prior to June 1, 2017 are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.112, 4.114, Diagnostic Code (DC) 7354.

2. The criteria for entitlement to a rating in excess of 40 percent for hepatitis C since June 1, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§4.1, 4.7, 4.112, 4.114, DC 7354.

3. The criteria for entitlement to an initial compensable rating for cirrhosis prior to January 21, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§4.1, 4.7, 4.114, DC 7312.

4. The criteria for entitlement to a 10 percent rating, but no higher, for cirrhosis since January 21, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§4.1, 4.7, 4.114, DC 7312.

5. The criteria for entitlement to a rating in excess of 30 percent for thrombocytopenia prior to February 15, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.117, DC 7705 (2017); 38 C.F.R. § 4.1, 4.7.

6. The criteria for entitlement to a compensable rating for thrombocytopenia since February 15, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.117 (2017); 38 C.F.R. §§ 4.1, 4.7, 4.117, DC 7705.

7. The criteria for entitlement to an extraschedular TDIU are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19, 4.25. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1966 to December 1969.

These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In December 2019 and April 2021, the Board remanded the appeals for further development. The issues have now been returned to the Board.

As discussed further below, the Veteran's hepatitis C is rated under 38 C.F.R. § 4.114, DC 7354. Note (1) of that DC directs that sequelae such as cirrhosis be rated separately under an appropriate DC. In this case, the Veteran has been assigned separate ratings for cirrhosis under 38 C.F.R. § 4.114, DC 7312, and thrombocytopenia under 38 C.F.R. § 4.117, DC 7705. In a January 2020 VA examination report, the examiner characterized thrombocytopenia as a "symptom" of cirrhosis, and in an August 2020 opinion the examiner stated that cirrhosis was "part and parcel of [the Veteran's] hepatitis C diagnosis." In September 2020 the examiner opined that the symptoms of hepatitis C and cirrhosis could not be distinguished. Based on these findings, the ratings for cirrhosis and thrombocytopenia are part of the claim for increased rating for hepatitis C and are included in the current appeal.  

Entitlement to a compensable initial rating for hepatitis C, prior to June 1, 2017, and to a rating in excess of 40 percent for hepatitis C since June 1, 2017 is denied; entitlement to a compensable initial rating for cirrhosis prior to January 21, 2020 is denied and a 10 percent rating for cirrhosis since January 21, 2020 is granted. 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods within the period on appeal. 

Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

All liver diseases are evaluated under the schedule for rating disorders of the digestive system. 38 C.F.R. § 4.114. Hepatitis C without cirrhosis is rated under DC 7354. Any sequelae, such as cirrhosis, is evaluated separately under DC 7312. See 38 C.F.R. § 4.114, DC 7354, Note (1).

Under DC 7354, an asymptomatic Hepatitis C is rated as noncompensable. 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. Of note, for purposes of evaluating conditions under DC 7354, "incapacitating episode" means a period of acute signs and symptoms severe enough to require both bed rest and treatment by a physician. 38 C.F.R. § 4.114, DC 7354, Note 2.

A 20 percent is assigned 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.

A 40 percent rating is assigned 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. Here, 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. See 38 C.F.R. § 4.112. "Baseline weight" is the average weight for the two-year period preceding onset of the disease. Id. 

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. 38 C.F.R. § 4.114, DC 7354. 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. See 38 C.F.R. § 4.112.

A total rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).

Alternatively, a Veteran may be rated based on cirrhosis, which is rated under DC 7312. See 38 C.F.R. § 4.114, DC 7312. A 10 percent rating is assigned for symptoms such as weakness, anorexia, abdominal pain, and malaise. A 30 percent rating is assigned for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. A 50 percent rating is assigned for history of one episode of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). A 70 percent rating is assigned for history 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. A total rating is assigned for generalized weakness, substantial weight loss, and persistent jaundice, or with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis). Of note, in no case may a separate rating be assigned for the same signs and symptoms used as basis for rating liver diseases under DC 7312. See 38 C.F.R. § 4.14.

A September 2015 private treatment record noted the Veteran complained of feeling "extremely fatigued." He was assessed with anemia and a vitamin b-12 deficiency and was prescribed treatment for these conditions. 

An October 2015 private computed tomography (CT) scan showed esophageal varices, splenomegaly, and cirrhosis. The Veteran was noted to have no fatigue at that time, and hepatitis C was described as "[probably] cured with treatment." The Veteran's weight was 194 pounds. 

On VA examination in January 2016, the Veteran's hepatitis C was noted to be asymptomatic, with no active treatment.

In a February 2016 letter, the Veteran asserted that he had residual kidney, spleen, and liver damage due to hepatitis C but did not describe any specific symptoms at that time. 

A March 2016 private treatment record noted the Veteran's hepatitis C was in remission, and that the Veteran weighed 195 pounds, having gained back previously lost weight.  

In an April 2016 private treatment record, the Veteran was noted to have cirrhosis with grade 1 esophageal varices and thrombocytopenia. 

In an April 2016 notice of disagreement, the Veteran asserted that a higher rating was warranted, stating that he had not been able to perform commercial fishing for several years. He did not describe any specific symptoms of hepatitis C which currently precluded him from performing commercial fishing. 

A February 2017 VA treatment record noted a weight of 202 pounds. 

May 2017 private treatment records noted the Veteran was treated for esophageal varices and exhibited mild-to-moderate portal gastropathy. 

On VA examination in June 2017 the examiner reported current symptoms of hepatitis C as intermittent fatigue and weight loss. The examiner noted the Veteran's baseline weight as 220 pounds and current weight as 184 pounds. There were no incapacitating episodes. The examiner further noted an "asymptomatic mild liver cirrhosis" but separately listed splenomegaly as a symptom of cirrhosis. 

On VA examination in January 2020, the Veteran's hepatitis C symptoms were intermittent nausea and vomiting, weight loss which had been sustained for 3 months or longer, and intermittent sharp mid-abdominal pain. There were no incapacitating episodes. The Veteran's cirrhosis caused intermittent weakness, abdominal pain, and weight loss. The baseline weight was listed as 195 pounds and current weight was 188 pounds. In a separate January 2020 opinion, the examiner listed fatigue as a symptom of cirrhosis. 

In a September 2020 addendum, the VA examiner opined that the Veteran's anemia was less likely than not related to or aggravated by cirrhosis or hepatitis C. In a second September 2020 addendum, the examiner stated that the symptoms of hepatitis C and cirrhosis were not separable, on the basis that "all signs and symptoms of the Veteran's cirrhosis [were] also signs and symptoms of his hepatitis C."

In a December 2020 statement the Veteran reported that his employment as a Coast Guard instructor was tiring and that he was chronically fatigued. 

Based on the foregoing, the evidence preponderates against finding that prior to June 1, 2017 hepatitis C was manifested by 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. The evidence relevant to this period reflects no active symptoms of hepatitis C, nor is there evidence of "incapacitating episodes" of acute signs and symptoms severe enough to require both bed rest and treatment by a physician.

While a September 2015 private treatment record noted the fatigue, this was attributed to anemia and a b-12 deficiency, which subsequently resolved with treatment. Thus, the available evidence preponderates against finding that the Veteran had fatigue due to his hepatitis C, prior to June 1, 2017. The Board also acknowledges the representative's September 2019 appellate brief argument that the Veteran continuously presented symptoms of daily fatigue and weight loss prior to June 1, 2017. The contemporaneous evidence of record does not contain complaints or evidence of fatigue due to hepatitis C prior to June 1, 2017, and objective measurements show weight gain, rather than loss, during this period.  

For the period since June 1, 2017, the evidence preponderates against finding that hepatitis C was 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 right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. While the record notes symptoms of fatigue and weight loss during this period, the evidence preponderates against finding daily fatigue, malaise, and anorexia with a loss of greater than 20 percent of baseline weight. The Board acknowledges the Veteran's December 2020 statement that he was "chronically fatigued." Even to the extent that such fatigue was "daily," the criteria for a 60 percent rating require that daily fatigue be accompanied by other symptoms, to include substantial weight loss, which is not shown here. There is no evidence of "incapacitating episodes" of acute signs and symptoms severe enough to require both bed rest and treatment by a physician.

The Board acknowledges that the January 2020 VA examiner characterized the Veteran's intermittent abdominal pain and fatigue as "debilitating." DC 7354 provides for a 100 percent rating based on "near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain)." Despite the examiner's characterization of the Veteran's abdominal pain and fatigue as debilitating, these symptoms were described as intermittent rather than "near-constant." Thus, a higher rating is not warranted on this basis. 

The Board has also considered whether a compensable rating is warranted for cirrhosis. For the period prior to January 21, 2020, the evidence preponderates against finding symptoms such as weakness, anorexia, abdominal pain, and malaise which are not already contemplated by the assigned 40 percent rating for hepatitis C. In this regard, the assigned 40 percent rating for hepatitis C since June 1, 2017 contemplates symptoms of fatigue and minor weight loss. The Board acknowledges that the June 1, 2017 VA examiner noted splenomegaly due to cirrhosis, and these symptoms are not explicitly contemplated by the rating assigned for hepatitis C. However, the rating criteria do not provide for a compensable rating based on splenomegaly alone. Rather, DC 7312 provides for a 30 percent rating based on splenomegaly, only where there are additional symptoms of weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. To the extent that such symptoms are shown, they are contemplated by the assigned 40 percent rating for under DC 7354 and cannot simultaneously serve as the basis for a 30 percent rating under DC 7312. Accordingly, no higher rating for cirrhosis is warranted.  

With regard to the period since January 21, 2020, at the January 21, 2020 VA examination, the Veteran reported symptoms of weakness and abdominal pain. These symptoms reasonably approximate "symptoms such as weakness, anorexia, abdominal pain, and malaise" to warrant a 10 percent rating under DC 7312, and are not explicitly contemplated by the assigned 40 percent rating for hepatitis C. Accordingly, effective January 21, 2020 a separate 10 percent rating for cirrhosis is warranted. 

However, a rating in excess of 10 percent for cirrhosis since January 21, 2020 is not warranted. As discussed above, the Board acknowledges that splenomegaly is shown during this period. However, a higher 30 percent rating is not warranted unless accompanying weakness, anorexia, abdominal pain, malaise, and at least minor weight loss are shown. In this case, the Veteran's weight loss is contemplated by the assigned 40 percent rating for hepatitis C. Thus, this symptom cannot simultaneously serve as the basis for a 30 percent rating under DC 7312. Pyramiding, or the evaluation of the same symptom under various diagnoses, is to be avoided. See 38 C.F.R. § 4.14; Perciavalle v. Wilkie, 32 Vet. App. 59 (2019). Accordingly, no higher rating for cirrhosis is warranted.

The Board has also considered the Veteran's VA treatment records reflecting a history of esophageal varices and gastropathy consistent with cirrhosis. While varices and gastropathy are listed under the ratings at 50 and 70 percent, these particular ratings may be assigned only based on a history of hemorrhage(s) resulting from varices and gastropathy rather than a mere presence of varices and gastropathy themselves. In this case there is no evidence that varices or gastropathy have resulted in hemorrhage(s) during the period on appeal. As such, higher ratings under DC 7312 are not warranted on this basis.

Based on the foregoing, entitlement to a compensable initial rating for hepatitis C, prior to June 1, 2017, and to a rating in excess of 40 percent for hepatitis C since June 1, 2017 is denied. Entitlement to a compensable initial rating for cirrhosis prior to January 21, 2020 is denied and a 10 percent rating for cirrhosis since January 21, 2020 is granted. 

Entitlement to a rating in excess of 30 percent prior to February 15, 2017 and to a compensable rating since February 15, 2017 for thrombocytopenia is denied. 

During the pendency of this appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the hematologic and lymphatic systems. Effective December 9, 2018, the final rule updated medical terminology, added certain hematologic diseases, and provided detailed and updated criteria for evaluating conditions pertaining to the hematologic and lymphatic systems. In cases where rating criteria are amended during the course of the appeal, such as this case, the Board must consider both the former and current schedular criteria. If an increased rating is warranted under the new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003).

Under DC 7705, the old rating criteria for "primary, idiopathic, or immune thrombocytopenia, which was effective prior to December 9, 2018, a 30 percent disability rating is assigned for a stable platelet count between 70,000 and 100,000, without bleeding. A 70 percent disability rating is assigned for a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding. A 100 percent rating is assigned for a platelet count less than 20,000 with active bleeding, requiring treatment with medication and transfusions. 38 C.F.R. § 4.117 (2017).

Under the revised, updated criteria for DC 7705, which has now been renamed as the rating criteria for "immune thrombocytopenia," effective December 9, 2018, a 10 percent disability rating is assigned for a platelet count higher than 30,000 but not higher than 50,000, not requiring treatment. A 30 percent rating is assigned with a platelet count higher than 30,000 but not higher than 50,000, with either immune thrombocytopenia or mild mucous membrane bleeding which requires oral corticosteroid therapy or intravenous immune globulin. A 70 percent rating is assigned when the thrombocytopenia requires immunosuppressive therapy; or for a platelet count higher than 30,000 but not higher than 50,000, with history of hospitalization because of severe bleeding requiring intravenous immune globulin, high-dose parenteral corticosteroids, and platelet transfusions. A maximum, 100 percent rating is assigned if chronic refractory thrombocytopenia requires chemotherapy; or with a platelet count 30,000 or below despite treatment. 38 C.F.R. § 4.117 (Revised December 9, 2018).

Relevant to the period on appeal, the VA and private treatment records reveal platelet readings as follows: 92,000 in October 2015; 85,000 in November 2015; 83,000 in January 2016; 92,000 in June 2016; 120,000 in February 2017; 109,000 in July 2017; 113,000 in August 2017; 100,000 in October 2017; 133,000 in June 2017; 153,000 in February 2018; 141,000 in September 2018; 115,000 in March 2019; and 137,000 in October 2019.

On VA examination in January 2020, the examiner noted laboratory testing showed platelets were 142,000, with additional symptoms of abdominal pain, nausea, and vomiting. Notably, while the examiner diagnosed pernicious anemia, in September 2020 the examiner opined that anemia was less likely than not caused or aggravated by cirrhosis or hepatis C. 

For the period prior to February 15, 2017 the preponderance of the evidence is against finding a stable platelet count below 70,000. There was no bleeding or specific treatment due to thrombocytopenia during this period. As all of the recorded platelet counts relevant to this period are in excess of 70,000, a rating in excess of 30 percent is not warranted.

For the period since February 15, 2017, the preponderance of the evidence is against finding a stable platelet count below 100,000. There was no bleeding or treatment due to thrombocytopenia during this period. As all of the recorded platelet counts during this period were 100,000 or greater, a compensable rating is not warranted under either the rating criteria in effect prior to December 9, 2018, or under the revised criteria effective thereafter. 

While the January 2020 examiner noted symptoms of abdominal pain, nausea and vomiting, the symptom of abdominal pain is expressly contemplated by the rating assigned for cirrhosis under DC 7312, and nausea and vomiting are contemplated by the rating assigned for hepatitis C under DC 7354. Thus, higher or separate ratings for thrombocytopenia cannot be assigned based on these symptoms.  38 C.F.R. § 4.115, DC 7354 Note (1). 

Based on the foregoing, entitlement to a rating in excess of 30 percent prior to February 15, 2017 and to a compensable rating since February 15, 2017 for thrombocytopenia is denied. 

Entitlement to a TDIU is denied. 

VA will grant a total disability evaluation based on individual unemployability due to service-connected disorders when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16.  

A total rating for compensation purposes may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a).  

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001).  

In determining whether an appellant is entitled to a total disability evaluation based on individual unemployability, neither his nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19.  

The Veteran is service-connected for hepatitis C, rated noncompensable prior to June 1, 2017 and 40 percent disabling thereafter; tinnitus rated 10 percent disabling; cirrhosis rated noncompensable prior to January 21, 2020 and 10 percent disabling thereafter; and thrombocytopenia rated 30 percent disabling prior to February 15, 2017 and noncompensable thereafter. The Veteran was also service connected for bilateral hearing loss and right third finger fracture residuals, each rated noncompensable. His combined rating was thus 40 percent from September 11, 2015 to February 14, 2017, 10 percent from February 15, 2017 to May 31, 2017, 50 percent since June 1, 2017, and 60 percent from January 21, 2020. 38 C.F.R. § 4.25. Therefore, the threshold percentage requirements for an award of TDIU are not met at any point during the appeal period. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board will nonetheless proceed to consider entitlement to a TDIU under 38 C.F.R. § 4.16(b).

On VA examination in February 2016 the examiner indicated no functional impairment due to a liver condition. 

In April 2016, the Veteran reported that he had been unable to work in commercial fishing for several years. 

On VA examination in June 2017 the examiner indicated no functional impairment due to a liver condition.

On VA examination in January 2020, the examiner indicated no functional impairment due to a liver condition, but separately indicated that the Veteran's "debilitating abdominal pain and fatigue" would "impact his ability to do sedentary work." 

On January 2020 VA thrombocytopenia examination, the examiner noted that easy fatigue and nausea would "impact [the Veteran's] ability to work" and "limit his ability to do sedentary work."  

In September 2020 the Veteran was requested to complete an Application for Increased Compensation Based on Unemployability (VA Form 21-8940), but he did not return the form. 

In December 2020 correspondence, the Veteran reported current employment as a Coast Guard instructor. He stated that his employment was tiring and that he was "chronically fatigued." He stated that his inability to stand for a long time affected his ability to perform in his job, and that sitting for long periods was also tiring. 

While failure to complete the VA Forms 21-8940 is not fatal to a claim of entitlement to a TDIU in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address the claim. The United States Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran failed to provide the requested form, the Board will adjudicate the claim based on the evidence of record.

The evidence preponderates against finding that the Veteran was precluded from all forms of substantially gainful employment due solely to his service-connected disorders. The record supports that symptoms of fatigue, abdominal pain, nausea, and vomiting impacted his ability to perform prolonged walking and sitting and would impact his ability to perform work and maintain employment. However, the evidence does not specifically indicate that such symptoms would be so severe as to preclude all forms of substantially gainful employment. Moreover, the available evidence indicates that the Veteran was employed during the claims period. The record does not contain any evidence that such employment was less than substantially gainful or sheltered at any time during the claims period.

Based on the foregoing, the totality of the evidence preponderates against finding that the Veteran's service-connected disabilities, alone, precluded him from obtaining or maintaining substantially gainful employment consistent with his educational and occupational experience. For the foregoing reasons, referral for consideration of TDIU on an extraschedular basis is not warranted.

TDIU is denied.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bametzreider, Paul J.

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.