Citation Nr: 1646971	
Decision Date: 12/15/16    Archive Date: 12/30/16

DOCKET NO.  13-14 839	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to a disability rating in excess of 60 percent prior to April 18, 2012, and in excess of 40 percent thereafter, for hepatitis C with cirrhosis of the liver.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to October 21, 2011.

3.  Entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C.A. § 1114 (s).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

R. Kipper, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1961 to February 1965.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted entitlement to service connection for hepatitis C, with an assigned rating of 20 percent effective May 12, 2010.  Jurisdiction currently lies with the RO in Manila, the Republic of the Philippines.

Thereafter, in a March 2013 Supplemental Statement of the Case, the RO increased the rating for the Veteran's hepatitis C to 60 percent disabling, retroactively effective from May 12, 2010, the date service-connection was established, and assigned a 40 percent rating, effective April 18, 2012.  

The Board notes that in the case of a staged rating involving the simultaneous assignment in a decision of higher and lower evaluations for a disorder, there is no reduction of a rating unless the rating action assigns a disability evaluation which is below that level previously in existence.  See Singleton v. Shinseki, 23 Vet. App. 376 (2010); Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009); O'Connell v. Nicholson, 21 Vet. App. 89 (2007).  Because the Veteran's disability rating was never reduced below the level that was appealed (20 percent), the reduction procedures of 38 C.F.R. § 3.105 (e) and the "stabilization" provisions of 38 C.F.R. § 3.344 are not for application.  

In September 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing, a transcript of which has been associated with the claims file.

The Board remanded this case in April 2015 for additional development.

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  An August 2012 rating decision reflects that a TDIU was granted from October 21, 2011, the effective date of the assignment of a 60 percent disability evaluation for chronic kidney disease.  As will be discussed more fully below, the issue of entitlement to a TDIU prior to October 21, 2011, is raised, and is within the jurisdiction of the Board.

As discussed in more detail below, the issue of entitlement to SMC at the housebound rate is raised by the record and is part and parcel of the claim for an increased rating.  See Akles v. Derwinski, 1 Vet. App. 118 (1991) (noting that the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim).


FINDINGS OF FACT

1.  Prior to April 18, 2012, the Veteran's hepatitis C was not manifested by near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).

2.  Since April 18, 2012, the Veteran's hepatitis C has manifested as daily to intermittent fatigue, malaise, nausea, vomiting, arthralgia, right upper quadrant pain, and hepatomegaly.  Anorexia with substantial weight loss; incapacitating episodes for a duration of six weeks over a one year period; and/or near-constant debilitating symptoms have not been shown.   

3.  As of May 12, 2010, the Veteran met the schedular criteria for a TDIU and his service-connected disabilities precluded him from securing or following a substantially gainful occupation.

4.  Since October 21, 2011, the Veteran has had a single service-connected disability rated as 100 percent disabling and additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different bodily systems.


CONCLUSIONS OF LAW

1.  Prior to April 18, 2012, the criteria for a rating in excess of 60 percent for hepatitis C were not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.114, DC 7354 (2015).

2.  Since April 18, 2012, the criteria for a rating in excess of 40 percent for hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.114, DC 7354 (2015).

3.  As of May 12, 2010, the criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015).

4.  Since October 21, 2011, the criteria for special monthly compensation at the housebound rate have been met. 38 U.S.C.A. §§ 1114 (s), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.350 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

As the Board's decision to grant entitlement to a TDIU and SMC is completely favorable, no further action with respect to this issue is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992).

In this case, VA's duty to notify was satisfied by way of a letter sent to the Veteran in June 2010.  

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

Here, the record reflects that VA made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records, VA examination reports, and the Veteran's lay statements.  

The Veteran has been in receipt of disability benefits from the Social Security Administration (SSA) since 2005.  As the Veteran was not granted service connection for hepatitis C until 2010 and because the Board is herein granting a claim of entitlement to TDIU, the records associated with his SSA disability claim are not relevant to the appeal, and the Board is under no obligation to obtain them.  See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (there is no duty to assist when there is no indication that the records are potentially relevant).

As noted above, the Board remanded this case in April 2015, in part, to obtain outstanding VA treatment records dated from 2011 to the present.  In July 2015, the AOJ obtained updated VA treatment records.  In light of the foregoing, the Board finds that there has been substantial compliance with its April 2015 remand directives with regard to obtaining outstanding records.  Stegall v. West, 11 Vet. App. 268 (1998).  Additionally, neither the Veteran, nor his representative, has identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal.

The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015).

In this case, the Veteran was afforded VA examinations to evaluate his hepatitis C in September 2011, April 2012, and July 2015.  The Board finds that the VA examinations are adequate for evaluation purposes because the examiners reviewed the claims file or were otherwise informed of the relevant facts of the Veteran's medical history, considered the lay statements of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008).  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined.  38 C.F.R. § 3.327(a).  Therefore, the Board finds that the examinations of record are adequate to adjudicate the Veteran's claim and that no further examinations are necessary.  

As noted above, the Veteran testified at a hearing before the undersigned in September 2013.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, during the September 2013 hearing, the undersigned VLJ fully explained the issue involved.  In addition, the VLJ suggested submission of evidence that had not yet been provided.  A review of the record reveals no assertion, by the Veteran or his representative, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing.  Moreover, the Veteran demonstrated actual knowledge of the elements and evidence necessary to substantiate the claim, as evident in the provided testimony.  Therefore, the undersigned met all the requirements described in 38 C.F.R. § 3.103(c)(2) and Bryant, and there has been no prejudice.

Thus, VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim.

II. Increased Ratings

The Veteran is in receipt of a 60 percent rating prior to April 18, 2012, and a 40 percent rating thereafter, for his service-connected hepatitis C under 38 C.F.R. § 4.114, DC 7354.  He contends that higher ratings are warranted for both periods. 

 

Legal Criteria

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § Part 4 (2015).  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7 (2015).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Hepatitis C is rated under 38 C.F.R. § 4.114, DC 7354.

Under DC 7354, near constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) warrant a 100 percent rating.  Id.  

A 60 percent rating is warranted where hepatitis C results in 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 twelve-month period, but not occurring constantly.  Id. 

A 40 percent rating is warranted where hepatitis C results in 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.

With respect to evaluating weight loss, 38 C.F.R. § 4.112 provides the guidance that 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.  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.  The phrase "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy.  "Baseline weight" means the average weight for the two-year period preceding onset of the disease.  38 C.F.R. § 4.112.  

Further, for purposes of this section, an "incapacitating episode" is defined as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  Id. at Note 2.  In addition to the above, any related sequelae from hepatitis C, such as cirrhosis or malignancy of the liver will be rated under the appropriate diagnostic code.  However, none of the signs and symptoms used to evaluate the disability under DC 7354 may also be used when rating under another diagnostic code.  Id. at Note 1.

Factual Background

By way of background, VA treatment records show that the Veteran was first seen at a VA medical center (VAMC) in September 2003 after an episode of hematemesis or coffee ground emesis.  At that time, he reported that he was first diagnosed with hepatitis C in 1998, however, he was unable to receive treatment due to a low platelet count.  He was diagnosed with decompensated cirrhosis secondary to hepatitic C, and he was placed on the liver transplant list.  At that time, his weight was 211 pounds.  In January 2005, the Veteran underwent a liver transplant.  A September 2009 VA treatment record shows that the Veteran's weight was 213 pounds.  

The Veteran filed the instant petition to reopen a previously denied claim of entitlement to service connection for hepatitis C in May 2010.  

An October 2010 VA treatment record shows that the Veteran was "doing well, feeling well from liver standpoint."  

During a June 2011 Decision Review Officer Hearing, the Veteran reported that his main complaint was fatigue.  

A July 2011 VA treatment record shows that the Veteran spent most of the past month in Canada visiting a friend.  He reported that he gained a few pounds while on vacation, but was back on a weight loss program.  

A September 2011 VA treatment record shows that the Veteran reported that he was getting married soon.  He denied decreased energy, abdominal pain, nausea, and vomiting.  

The Veteran was afforded a VA examination in September 2011.  The Veteran reported that he had anemia, edema, and "feels bad everyday" as a result of his liver disease.  The examiner noted that the Veteran required continuous medication for control of his liver conditions, including hepatitis C.  The examiner indicated that the Veteran had the following symptoms of hepatitis: daily right upper quadrant pain and dietary restrictions.  The examiner also indicated that the Veteran had incapacitating episodes of a total duration of six weeks or more over the past 12 months.  Laboratory studies showed evidence of the hepatitis C virus.  The examiner indicated that the Veteran's liver condition impacted his ability to work in that the "Veteran states he is completely unemployable.  He cannot sit, walk, stand richarddixon@example.net.  He is very fatigued and short of breath."  

A December 2011 VA treatment record shows that the Veteran was seen in the emergency room for complaints of chest pain after exercising.  He reported that he "[h]as a private trainer and is performing swimming and pushups almost daily."  The Veteran denied weight loss, nausea, vomiting, abdominal pain, diarrhea, constipation, new arthralgia, myalgia, weakness, joint swelling.  The impression was chest pains in Veteran with established coronary heart disease.  His weight was 217 pounds.  

In his January 2012 notice of disagreement, the Veteran reported that his hepatitis C symptoms "are constantly debilitating."  He indicated that he has "continual fatigue, malaise, nausea, arthralgias, and pain in my upper right quadrant."  He indicated that treatment records from December 2011 support his contentions.  

A January 2012 VA treatment record shows that the Veteran reported that he is "fatigued quite a bit of the time and is working on getting his weight down and exercising/swimming regularly."  A February 2012 VA treatment record shows that the Veteran reported more energy and that he was losing weight.  His weight was 213 pounds.  

In a March 2012 statement, the Veteran raised a claim of kidney disease secondary to his hepatitis C.  He also reported edema secondary to his kidney disease.  The Veteran reported that he has a chronically swollen spleen secondary to his hepatitis C that causes his platelet count to be dangerously low.  He reported that the medications he takes because of his low platelet count cause chronic anemia.  

The Veteran was afforded a VA examination in April 2012.  The examiner noted that the Veteran required continuous medication "for transplant."  The examiner indicated that the Veteran had the following symptoms of hepatitis: daily fatigue, daily malaise, daily vomiting, daily arthralgia, daily right upper quadrant pain, and hepatomegaly.  The examiner indicated that the Veteran had not had any incapacitating episodes due to his liver conditions during the past 12 months.  The examiner noted that the Veteran did not have signs or symptoms of cirrhosis of the liver because he had a liver transplant in 2005.  The Veteran reported that his current signs and symptoms status-post transplant were fatigue and swelling of the lower extremities.  Laboratory studies showed evidence of the hepatitis C virus.  The examiner indicated that the Veteran's liver condition impacted his ability to work because of fatigue with decreased endurance.  

An April 2012 VA treatment record shows that the Veteran "has done well from a liver standpoint overall."  He reported that he continues to try to lose weight and was exercising very regularly until he fractured a rib.  His weight was 220 pounds.  

A July 2012 VA treatment record shows that the Veteran complained of bilateral hand pain.  His primary care provider subsequently sent the Veteran a letter indicating that "hepatitis C can cause an arthritis which is similar in appearance to rheumatoid arthritis."  During a July 2012 follow-up visit, the Veteran reported left shoulder pain and bilateral thumb pain.  His gastroenterologist noted that the Veteran "has done well overall."  The Veteran reported that he joined a gym and was working out several days per week to try and lose weight.  His weight was 223 pounds.  

A September 2012 VA treatment record shows that the Veteran was planning to move to the Philippines to marry his fiancé.  He also reported that he could not lose weight despite diet and exercise.  

A January 2013 VA treatment record shows that the Veteran returned from the Philippines.  He reported that he had been "very careful with his diet," and his weight was now under 200 pounds.  He weight was recorded at 198 pounds.  The Veteran reported that he was "feeling well."  During a January 2013 endocrine clinic visit, the Veteran reported that he would be moving to the Philippines soon.  He denied decreased energy, weakness, abdominal pain, nausea, and vomiting.  A January 2013 VA gastroenterology note shows that the Veteran reported that he was doing well.  He denied abdominal pain and his liver function tests were normal.  

A February 2013 VA treatment record shows that the Veteran weighed 202 pounds.  

A March 2013 VA treatment record shows that the Veteran was planning to return to the Philippines.  

During the September 2013 hearing, the Veteran reported that his symptoms of hepatitis C were a low platelet count, fatigue, hernias, bone spurs, chronic asities, and malaise.  

An April 2014 VA treatment record shows that the Veteran just arrived in town from the Philippines and wanted to reestablish care.  He denied nausea and vomiting.  He weighed 214 pounds.  

During an April 2014 VA gastroenterology visit, the Veteran was noted as doing well overall from a liver standpoint.  He reported having pain and constipation that he felt was related to his hernias.  He also reported irregular bowel movements and pain in his hips.  He denied fever or chills, but reported recurrent lower extremity edema with onset after returning to the United States while living in a motel awaiting housing.  His weight was 214 pounds.  

A June 2014 VA treatment record shows that the Veteran was "doing reasonably well and very well from a liver transplant standpoint."  The Veteran indicated that he was trying to maintain his weight and is very careful with calorie intake.  He weighed 209 pounds.  

During a July 2014 VA cardiology consult, the Veteran denied weight loss, anorexia, excess fatigue, nausea, and vomiting.  

An October 2014 VA treatment record shows that the Veteran was a candidate for Harvoni, which was recently approved by the FDA, but not yet available in the VA system.  A December 2014 VA treatment record shows that the Veteran weighed 228 pounds.  

In December 2014, the Veteran started 12 week Harvoni treatment for hepatitis C.  During a two week follow-up in January 2015, he denied weight loss, loss of appetite, abdominal pain, nausea, vomiting, dizziness, headache, and fatigue.  During a four week follow-up in January 2015, he denied weight loss, loss of appetite, abdominal pain, nausea, vomiting, dizziness, headache, and fatigue.  

During a six-week follow-up in February 2015, the Veteran weight loss, loss of appetite, abdominal pain, nausea, and vomiting.  He reported new onset dizziness, fatigue, and shortness of breath.  His hepatitis C viral load was not detected.  During an eight-week follow-up in March 2015, the Veteran reported mild fatigue and dizziness.  During a ten-week follow-up in March 2015, the Veteran reported mild photo-sensitivity, fatigue, and stable muscle aches and pains.  During the final, 12-week follow-up in March 2015, the Veteran reported mild sensitivity to sunlight, stable arthralgia, and mild fatigue.  He denied weight loss, loss of appetite, abdominal pain, nausea, vomiting, dizziness, and headache.  The Veteran's hepatitis C viral load was not detected, and the "significant and high chance of cure" was explained to the Veteran.  

An April 2015 VA treatment record shows that the Veteran looked well and reported no new problems.  He indicated that he was trying to finalize plans to publish a book over the summer.  He denied any new bowel or GI complaints.  He weighed 215 pounds.  

The Veteran was afforded a VA examination in July 2015.  The examiner noted that the Veteran required continuous medication.  The examiner indicated that the Veteran had the following symptoms of hepatitis: daily fatigue, intermittent nausea, and hepatomegaly.  The examiner indicated that the Veteran had not had any incapacitating episodes due to his liver conditions during the past 12 months.  The examiner noted that the Veteran just completed Harvoni treatment for his hepatitis and that his viral load was currently undetectable.  The examiner indicated that the Veteran's liver condition impacted his ability to work because of fatigue and malaise that affect endurance.

Analysis

Having carefully considered the Veteran's contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a 100 percent rating have not been met during the entire appeal period as the Veteran has not exhibited near-constant debilitating symptoms due to his hepatitis C.  

Although the record reflects that Veteran has experienced periods of fatigue, malaise, arthralgia, and right upper quadrant pain, there is no indication that such symptoms have been near-constant and debilitating.  In this regard, the Veteran's claims that he experienced "continual fatigue, malaise, nausea, arthralgias, and pain in my upper right quadrant" are not entirely supported by the evidence.  As reflected above, the Veteran consistently denied nausea and abdominal pain during VA treatment.  Additionally, VA treatment records throughout the appeal period show that the Veteran has routinely traveled, engaged in exercise programs, and, most recently, was writing a book.  Moreover, on multiple occasions, the Veteran's treating providers described the Veteran as doing well from a liver standpoint.  In sum, there is no indication in the medical record to suggest that the Veteran has suffered from near-constant and debilitating hepatitis symptoms during the appeal period.  Accordingly, the criteria for a higher 100 percent rating are not met at any time during the appeal period.  

With regard to the period beginning on April 18, 2012, the Board finds that the criteria for the assignment of the next higher, 60 percent rating, for the Veteran's hepatitis C have not been met.  Again, while the Board acknowledges the Veteran is shown to have fatigue and malaise, the evidence of record does not show that he suffered substantial weight loss, malnutrition, or anorexia.  The Veteran's baseline weight in 2003 when he was diagnosed with cirrhosis of the liver secondary to hepatitis C was 211 pounds.  The lowest weight recorded during the appeal period was 198 pounds in January 2013, which reflects a six percent decrease in the baseline weight.  Moreover, the record clearly reflects that the Veteran's weight-loss, to the extent it occurred, was intentional and done through diet and exercise.  In fact, the Veteran was specifically counseled in January 2015 due to obesity, and he underwent a nutrition consultation in March 2015 in order to lose weight.  

In addition, for the period beginning on April 18, 2012, there is no evidence of any incapacitating episodes associated with his hepatitis C having a total duration of at least six weeks during the past 12-month period, but not occurring constantly.  In this regard, the April 2012 VA examiner indicated that the Veteran had not had any incapacitating episodes due to his liver conditions during the past 12 months.  VA treatment records from this period generally show that the Veteran was doing well, exercising regularly, traveling, and publishing a book.  See April 2012 VA Treatment Record (doing well, exercising regularly); July 2012 VA Treatment Record (joined gym, working out several days per week, planning a trip to the Philippines); January 2013 VA Treatment Record (feeling well); June 2014 VA Treatment Record (doing very well); April 2015 (looked well, publishing book).  Additionally, the July 2015 VA examiner indicated that the Veteran had not had any incapacitating episodes due to his liver conditions during the past 12 months.  

Nor is a 100 percent disability rating warranted for the period beginning on April 18, 2012.  As noted above, although the record reflects that Veteran has experienced periods of fatigue,  malaise, arthralgia, and right upper quadrant pain, there is no indication that such symptoms have been near-constant and debilitating.  

The Board has considered whether a higher or separate rating is warranted under Diagnostic Code 7345, which contemplates chronic liver disease without cirrhosis, or Diagnostic Code 7312, which contemplates cirrhosis of the liver.   However, it would be impermissible to rate the Veteran's disability under Diagnostic Code 7345 because that diagnostic code employs the same exact criteria as Diagnostic Code 7354.  To rate the same symptomatology separately under two identical diagnostic codes would constitute impermissible pyramiding.  See 38 C.F.R. § 4.14.  Regarding Diagnostic Code 7312, the Veteran is already receiving a separate, 30 percent rating for liver transplant.  Moreover, there is no evidence that the Veteran has been diagnosed with cirrhosis since his liver transplant.  See generally VA Treatment Records and VA Examinations.  

Regarding the Veteran's edema, this symptom has been attributed to the Veteran's chronic kidney disease, for which he is receiving a separate 60 percent rating.  See April 2012 VA Examination.  

Regarding anemia and thrombocytopenia, a VA examiner opined that neither was caused by or aggravated by the Veteran's hepatitis C, but that they were related to the Veteran's splenomegaly.  See June 2012 VA Examination Report.  The Board notes that the Veteran is also separately service-connected for splenomegaly.

The Board has also considered whether staged ratings are necessary during the appeal period.  However, based on the facts found, the Board finds that staged ratings beyond those assigned by the RO are not warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Finally, the disability does not warrant referral for extra-schedular consideration.  In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hepatitis C with the established criteria found in the rating schedule.  As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which hepatitis C is rated.  There are no additional symptoms that are not addressed by the rating schedule.  The Veteran has not described any exceptional or unusual features of his hepatitis C disability.  In fact, as discussed above, the symptomatology of the Veteran's disability centers on his complaints of fatigue and malaise.  These symptoms are specifically contemplated under the assigned ratings criteria.  Additionally, higher ratings are available for the service-connected disability when it is more severe; however the Veteran simply does not meet those criteria.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected disability.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

The Board also notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple disorders in an exceptional circumstance where the evaluation of the individual entities fails to capture all the service-connected disabilities experienced.  

The Board acknowledges the Veteran's representative's October 2016 argument that the Veteran's current rating does not accurately capture the severity of his condition due the "multiple, severe chronic conditions" noted on the July 2015 VA examination.  Thus, the Veteran's representative asserted that extra-schedular consideration under Johnson was appropriate in this case.  The Board notes that the July 2015 VA examiner recorded the following disabilities, in addition to hepatitis C: cystic diseases of the kidneys, ventral hernia, splenomegaly, scars, and thrombocytopenia.   Regarding kidney disease, ventral hernia, splenomegaly, and scars, the Veteran is already separately rated for these disabilities.  Regarding thrombocytopenia, as noted above, this is not caused by the Veteran's hepatitis C.  Moreover, the combined effects extraschedular rating is meant to perform a gap filling function to provide compensation between the combined schedular rating and a total rating.  Johnson v. McDonald, at 1365-6.  In the instant case the Board is granting a TDIU prior to October 21, 2011, and the Veteran has already been awarded a TDIU since October 21, 2011.  Thus, there is no gap to fill.  Accordingly, this is not a case involving an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple entities.  

For the foregoing reasons, the Board finds that the claim for a higher rating must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims for higher ratings, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

III. TDIU Prior to October 21, 2011

The Veteran filed his claim for service connection for hepatitis C on May 12, 2010, and he appealed the initial rating assigned.  During the pendency of this appeal, he has asserted that he is unemployable as a result of his service-connected hepatitis C. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54   (2009).  In an August 2012 rating decision, the RO granted entitlement to a TDIU effective from October 21, 2011 based solely on the Veteran's chronic kidney disease.  However, the claim for a TDIU is part and parcel of the claim for a higher initial rating for hepatitis C, which has been pending since May 12, 2010.  The Board thus finds that the Veteran's claim for TDIU was constructively received by VA on May 12, 2010, the date on which VA received the Veteran's claim for service connection for hepatitis C.

A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation.  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by disabilities that are not service connected.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2015).   In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

If there is only one service-connected disability, it must be ratable at 60 percent or more.  If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).  A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).

From May 12, 2010 to May 19, 2011, the Veteran was service-connected for the following disabilities: (i) hepatitis C, rated as 60 percent disabling; (ii) status post liver transplant, rated as 30 percent disabling; (iii) degenerative disc disease of the lumbar spine, rated as 20 percent disabling; (iv) scar, rated as 10 percent disabling; and (v) hemorrhoids, left ear hearing loss, status post abdominal hernia repair, and splenomegaly, all rated as noncompensable.  These disabilities combine to an 80 percent rating.  From May 20, 2011 to October 20, 2011, the Veteran was service-connected for the following disabilities: (i) hepatitis C, rated as 60 percent disabling; (ii) status post liver transplant, rated as 30 percent disabling; (iii) degenerative disc disease of the lumbar spine, rated as 20 percent disabling; (iv) scar, rated as 10 percent disabling; (v) lumbar radiculopathy, rated as 10 percent disabling, and (vi) hemorrhoids, left ear hearing loss, status post abdominal hernia repair, and splenomegaly, all rated as noncompensable.  These disabilities combine to a 90 percent rating.   

Thus, at all times since May 12, 2010, the Veteran has had at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more, and he therefore has met the schedular requirements for a TDIU.

Accordingly, the remaining question concerns whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to October 21, 2011. 38 C.F.R. § 4.16 (a).  After a careful review of the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation.

The record reflects that the Veteran last worked in 2003 and that he quit working due to his liver conditions.  As noted above, multiple VA examiners have opined that the Veteran is unable to work due to fatigue and malaise from his liver conditions.  Additionally, VA examiners have found that the Veteran's service-connected low back disability impact his ability to work.  See June 2009 VA Examination Report.

Although the Veteran has not completed a formal TDIU application outlining his employment history, the record clearly indicates he has not engaged in substantially gainful employment since 2003, when fatigue, pain, and other complications from his service-connected back and liver disabilities forced him to end his career.   Accordingly, the Board finds that since May 12, 2010, the date of receipt of the reopened claim for entitlement to service connection for hepatis C, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Accordingly, the Board resolves all reasonable doubt in the Veteran's favor and determines that as of May 12, 2010, a TDIU rating is warranted.  38 U.S.C.A. §§ 5107 (b), 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.400, 4.3.

IV. Entitlement to SMC

Entitlement to SMC is an "inferred issue" in the context of an increased rating claim that must be considered when the record indicates that it may be available, even if the claimant does not place eligibility for this ancillary richarddixon@example.net.  Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008).  Accordingly, this issue has been added for appellate consideration, as reflected on the cover sheet of this opinion.  There is no prejudice to the Veteran in the Board considering entitlement to SMC in the first instance, as eligibility for this benefit turns solely on the application of law, and the Board's decision is favorable to the extent permitted by law, as discussed below.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that where the Board addresses a question that has not been addressed by the AOJ, the Board must consider the potential for prejudice to the appellant).

SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated at 100 percent and one or more distinct service-connected disabilities, which are independently ratable at 60 percent and involve different anatomical segments or bodily systems.  38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350 (i).  For the purposes of a single 100 percent disability, a grant of a TDIU based on a single disability can qualify.  See Bradley v. Peake, 22 Vet. App. 280 (2008).

In an August 2012 rating decision, the RO granted entitlement to a TDIU based solely on the Veteran's chronic kidney disease, effective from October 21, 2011.  Since October 21, 2011, service connection has also been in effect for (i) hepatitis C, rated as 60 percent disabling prior to April 18, 2012, and as 40 percent disabling thereafter; (ii) status post liver transplant, rated as 30 percent disabling; (iii) adjustment reaction with depressed mood, rated as 30 percent disabling; (iv) degenerative disc disease of the lumbar spine, rated as 20 percent disabling; (v) scar, rated as 10 percent disabling; and (vi) lumbar radiculopathy, rated as 10 percent disabling.  These disabilities, which are independently ratable at over 60 percent, involve separate and distinct anatomical segments or body systems.

Thus, for the period since October 21, 2011, the Veteran has had a service-connected disability rated as total and an additional anatomically distinct service-connected disability, which are independently ratable at 60 percent or above. Accordingly, entitlement to SMC at the housebound rate under 38 U.S.C.A. § 1114 (s) is granted, effective that date.  This grant is intended as an entirely favorable decision in a matter raised by the record and addressed for the first time by the Board and is not to be construed as precluding a claim for any higher level of special monthly compensation or an award of special monthly compensation for an earlier period of time.


ORDER

Entitlement to a disability rating in excess of 60 percent for hepatitis C prior to April 18, 2012, and in excess of 40 percent thereafter, is denied.

A TDIU is granted from May 12, 2010, subject to the laws and regulations governing the award of monetary benefits.

Effective October 21, 2011, entitlement to special monthly compensation at the housebound rate under 38 U.S.C.A. § 1114 (s) is granted.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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