Citation Nr: 22018180 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-51 168 DATE: March 28, 2022 ORDER Entitlement to a 40 percent initial rating for hepatitis C, for accrued benefits purposes, is granted. Entitlement to service connection for cervical spine degenerative joint disease, for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The Veteran's hepatitis C symptoms included constant fatigue, weight loss and hepatomegaly. 2. The Veteran's cervical spine degenerative joint disease first developed many years after discharge from service and was not related to service. CONCLUSIONS OF LAW 1. The criteria for a 40 percent initial rating for hepatitis C, for accrued benefits purposes, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7354. 2. The criteria for service connection for cervical spine degenerative joint disease, for accrued benefits purposes, are not met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to July 1972. This matter is on appeal before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran filed a VA Form 21-098 Notice of Disagreement in January 2014. The Veteran died in April 2015. The appellant, his surviving spouse, filed a claim for accrued benefits in August 2015. 1. Entitlement to a compensable rating for hepatitis C. The December 2013 rating decision on appeal granted the Veteran service connection and a noncompensable rating for hepatitis C, effective from July 3, 2013. The appellant maintains that the Veteran should have been awarded a compensable rating for hepatitis C. At her October 2021 hearing the appellant reported that the Veteran took medication for treatment of his hepatitis C. She testified that the Veteran had intermittent fatigue and that in 2004 his hepatitis C medication caused him to throw up. 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 noncompensable rating is assigned for non-symptomatic Hepatitis C. 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 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. Private medical records dated in October 2012 note that the Veteran reported feeling extremely fatigued. He denied abdominal pain. A November 2013 VA treatment record noted that the Veteran had constant fatigue. It was further noted that the chronic hepatitis C did not cause any new hepatic symptoms. A December 2013 ultrasound revealed an enlarged liver (hepatomegaly). A March 2014 VA treatment record noted that the Veteran had hepatitis C and constant fatigue. In March 2014 the Veteran weighed 245 pounds. In November 2014 he weighed 223 pounds. Based on the above medical records the Board finds that the Veteran was entitled to a 40 percent rating for hepatitis C. These records show constant fatigue (daily fatigue), enlarged liver (hepatomegaly) and weight loss (almost 10 percent reduction in weight), symptoms that more nearly meet the criteria for a 40 percent rating. A rating in excess of 40 percent is not warranted because the Veteran did not experience substantial weight loss or incapacitating episodes. He was not shown to have weight loss greater than 20 percent and he was not shown to have any incapacitating episodes. In December 2013 a VA examiner specifically stated that the Veteran had not had any incapacitating episodes. The Board acknowledges that on his July 2014 notice of disagreement, the Veteran reported that medication for hepatitis C had caused loss of sexual function, nausea and severe fatigue. However, a review of the medical records shows that the Veteran's medication treatment for hepatitis C was prior to the grant of service connection. During the appeal period the medical records indicate that the Veteran was not taking any medication to treat his hepatitis C disability. Symptoms due to medication for hepatitis C prior to the appeal period are not for consideration. In conclusion, an increased rating of 40 percent, but no higher, is warranted since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 2. Entitlement to service connection for cervical spine degenerative joint disease. The Veteran submitted his claim for service connection for cervical spine degenerative joint disease in July 2013. On his January 2014 notice of disagreement (NOD) the Veteran asserted that his neck pain was due to an accident in service. He said that no one really checked his neck at the time of the accident. At her hearing, the appellant testified that the Veteran had had neck pain ever since she first met him. She said that they had been together since 1979. According to the appellant the Veteran told her that he injured his neck in service in the same tractor trailer accident in which he hurt his leg. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of a veteran's discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection because arthritis of the cervical spine was not medically diagnosed within one year of discharge. The Veteran's service treatment records (STRs), including the May 1972 discharge examination report, reveal no neck or cervical spine complaints or disability. The STRs do note that he fell off a vehicle onto the left side of his knee, injuring his left knee. There is no indication that the Veteran injured any other part of his body other than his left knee. The post service medical records reveal complaints of left wrist pain in September 1997, right knee pain in June 2000, and left ankle pain in July 2011. An August 2009 private physical noted that the Veteran's neck was supple, had full range of motion, and that there was no cervical tenderness. VA treatment records first note complaints of neck pain in October 2012. The Veteran reported that he had had neck pain for about a month and he denied any injury. Thereafter the Veteran continued to have neck pain and CT scan in April 2013 revealed cervical spine degenerative changes. On VA examination in December 2013 the Veteran reported chronic pain in his left shoulder and neck that he attributed to a prior military injury. The Veteran reported that he was thrown off of an excavator and injured his left side. He stated that he fractured his left collar bone and had abrasions/scarring on his left arm and hand. The VA examiner opined that it was less likely than not that the Veteran's degenerative joint disease of the neck was caused by an inservice injury. She noted that the only traumatic injury noted in the STRs was to the left knee. The Board does not find the Veteran's reports of injury his neck during service, and experiencing pain ever since, to be credible. The record shows that the Veteran denied cervical tenderness in August 2009. Furthermore, when he first reported cervical pain in October 2012, he denied any injury and reported that he had had the pain for about a month. The Board finds the October 2012 statements of the Veteran, which are supported by the medical records, to be more probative than his later reports of a neck injury during service and of neck pain ever since service. Contemporaneous records are more probative than a history reported by the Veteran subsequently. In summary, the STRs show no complaints or injury of the neck during service, medical records first documented complaints of neck pain in October 2012 at which time the Veteran denied any neck injury and reported neck pain for about a month, and a VA examiner opined that the Veteran's cervical spine disability was unrelated to service. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for cervical spine degenerative joint disease, for accrued benefits purposes, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.