Citation Nr: 22020002 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 17-55 272 DATE: April 4, 2022 ORDER Restoration of a 20 percent rating for hepatitis C status post interferon treatment with associated fibrosis (hereinafter hepatitis C) is denied. A compensable rating for hepatitis C is denied. FINDINGS OF FACT 1. The Veteran's hepatitis C has been cured and does not cause symptoms. 2. The Veteran lacks serologic evidence of a current hepatitis C infection. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating for hepatitis C are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for a compensable rating for hepatitis C are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, .4.7, 4.114, Diagnostic Code 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from November 1972 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded this matter for further development. Rating Reduction The Veteran was assigned a 20 percent rating for his hepatitis C under Diagnostic Code (DC) 7354 as of September 9, 2014. In January 2017, the RO reduced the assigned rating to 0 percent under DC 7354. The Veteran submitted a notice of disagreement (NOD), and the reduced rating was continued in a September 2017 statement of the case (SOC). The 20 percent rating was in effect from September 2014. The reduction was effective April 2017. Therefore, the rating was effective for less than five years. As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344(a) and (b) are not applicable. 38 C.F.R. § 3.344(c). Instead, reexaminations disclosing improvement will warrant a reduction in rating. Id. DC 7354 provides for six levels of hepatitis C disability, but each level requires serologic evidence of hepatitis C infection and sign and symptoms due to hepatitis C. 38 C.F.R. § 4.114. In June 2016, the Veteran underwent a VA examination. The examiner found the Veteran to have non-detected hepatitis C since 2009 and continuous medication to not be required. No current signs or symptoms due to hepatitis C or signs or symptoms attributable to cirrhosis of the liver were found. The examiner noted laboratory studies from June 2016 found no detectable levels of the hepatitis C virus. The Board notes though that in September 2016 the Veteran underwent another VA examination that produced contrary results to the June 2016 examination. This examiner found the Veteran to be exhibiting signs or symptoms due to hepatitis C and that the Veteran had incapacitating episodes due to hepatitis C in the past 12 months. The examiner also noted that the Veteran was a liver transplant candidate. However, the examiner did find that hepatitis C was not detected according to lab studies from June 2016. Due to the contradictory findings of the two examinations conducted in a short span, VA sought a clarification opinion to resolve these contradictions. In October 2016, a clinician reviewed both examinations, and found the September 2016 examination to not be supported by the Veteran's medical records. The clinician noted that the Veteran's hepatitis C is considered cured as evidenced by no viral load being detected since 2009. The clinician found the finding in the September 2016 examination that the Veteran had an incapacitating episode due to hepatitis C to not be supported by the Veteran's treatment records. They also found the finding that the Veteran was liver transplant patient to not be supported by medical evidence as VA treatment records show the Veteran's liver enzyme values to be within normal ranges. The Board finds the above evidence to support the reduction to a noncompensable rating for hepatitis C. Though the September 2016 examiner found the Veteran to have signs or symptoms due to hepatitis C, these findings are not supported by the record. A December 2014 VA treatment records notes that the Veteran's hepatitis C was eradicated there is no evidence of a current hepatitis C infection. The Board notes that the September 2016 examiner marked they had reviewed the Veteran's VA treatment records, but these records clearly contradict this examiner's findings. Concerning the finding that the Veteran experienced an incapacitating episode, note (2) for DC 7354 defines an incapacitating episode to mean a period of acute signs and symptoms sever enough to require bed rest and treatment by a physician. VA treatment records contain no mention in the twelve months preceding the September 2016 examination of the Veteran being prescribed bed rest or treatment from a physician for his hepatitis C. Without this evidence, it cannot be found that the Veteran experienced an incapacitating episode due to hepatitis C. Lastly, the examiner even noted that a June 2016 lab test found undetectable viral loads of hepatitis C, yet they still found the Veteran to have signs or symptoms due to hepatitis C. The findings of the September 2016 examiner are not supported by the record and the Board affords them no probative weight. The Board affords greater probative weight to the Veteran's VA treatment records, the findings from the June 2016 examiner, and the October 2016 opinion. This evidence all shows that the Veteran did not have any detectable levels of the hepatitis C virus prior to the reduction. Without evidence of the Veteran having a hepatitis C infection, a compensable rating is not warranted. The Board recognizes the Veteran's reported symptoms in his August 2017 notice of disagreement. Though the Veteran may be experiencing symptoms of nausea, vomiting, and fatigue, he has not shown that he has the necessary medical expertise to associate these symptoms with hepatitis C. Furthermore, the Veteran has not shown that he had serologic evidence of hepatitis C at any time during the period on appeal. As such, the Board affords more probative weight the Veteran's VA treatment records, the findings from the June 2016 examiner, and the October 2016 opinion. Accordingly, the Board finds that the evidence weighs persuasively against restoring the 20 percent rating. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. Increased Rating As the rating reduction originated from a claim for an increased rating, the Board will also address whether a compensable rating can be awarded for the period after the rating reduction. For the following reasons, the Board finds that a compensable rating is not warranted. As explained above, the rating criteria for hepatitis C all require serologic evidence of hepatitis C infection. Without serologic evidence of hepatitis C infection, a compensable rating cannot be awarded. After remand, in March 2020, an examination based on a review of the Veteran's medical records was conducted. The examiner found the Veteran's hepatitis C to be in remission and noted that December 2019 lab tests found viral titers to be 0 < 12. VA treatment records support the findings of this examiner. A November 2017 VA treatment record found the hepatitis C virus to not be detected. A December 2019 VA treatment record noted that the Veteran's hepatitis C was eradicated with interferon. Furthermore, a January 2020 ultrasound revealed no evidence of hepatic mass and viral loads were undetected. The Board also refers to the examinations discussed above in the reduction section that found no evidence of the hepatitis C virus. The evidence is persuasively against finding that the Veteran has serologic evidence of hepatitis C. Without serologic evidence of hepatitis C, a compensable rating cannot be awarded, and the claim is denied. John Z. Jones Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, Associate 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.