Citation Nr: 1829628	
Decision Date: 06/27/18    Archive Date: 07/02/18

DOCKET NO.  01-07 642	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to an initial compensable rating for residuals of hepatitis A and B.  


REPRESENTATION

Appellant represented by:	Kathy Lieberman, Attorney


ATTORNEY FOR THE BOARD

Y. Taylor, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Veteran served on active duty from January 1966 to December 1967.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  

The Board previously remanded this case for additional development in July 2017.  The case has now been returned to the Board for appellate review.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  


FINDING OF FACT

From September 7, 1999, effective date for the award of service connection for residuals of hepatitis A and B, the Veteran's hepatitis A and B have been asymptomatic.  


CONCLUSION OF LAW

The criteria for an initial, compensable rating for hepatitis A and B are not met.  
38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.3, 4.3, 4.7, 4.114, DC 7345 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2.  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.

The Veteran's hepatitis A and B is rated as noncompensably disabling under 38 C.F.R. § 4.114, Diagnostic Code 7345, which evaluates chronic liver disease without cirrhosis.  Under that Code, a noncompensable rating is warranted when the disability is nonsymptomatic.  

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 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.  

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. 

A 100 percent rating is assigned for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain).  38 C.F.R. § 4.114, Diagnostic Code 7345.

An "incapacitating episode" is a period of acute signs and symptoms that requires bed rest and treatment by a physician.  Id., Note 2.  

Turning to the evidence of record, in March 2001, the AOJ contacted the Veteran by phone to clarify whether he was under treatment for any residuals of in-service hepatitis.  The Veteran indicated that he had no symptoms, but he was informed that he could not donate blood any longer.  

In April 2001, the Veteran was afforded a VA examination.  At the examination, the Veteran denied vomiting, hematemesis or melena.  There was no treatment at present for liver disease.  The Veteran complained of diffused lower abdominal pain, not associated with any other symptoms.  He also complained of fatigue and weakness, but denied anxiety or depression.  No weight change was reported.  There was no evidence of malnutrition.  There was no history of steatorrhea or mal-absorption.  His liver was found to be in normal size without superficial abdominal veins.   February 2001 lab work was reviewed and it was found that the results were within normal limit.  March 1998 hepatitis profile reported as follows:  hepatitis B surface antigen, surface antibody and E antibody all reported as negative; hepatitis C virus reported as negative; and hepatitis A virus antibody total reported as positive.  The examiner found no evidence of chronic liver disease, and provided a diagnosis of status post hepatitis A without residuals.  

In June 2006 VA examination, it was noted that the Veteran had one incapacitating episode in service, but no further episodes were reported.  The Veteran had no treatment for his hepatitis problems.  He had no symptoms since initial episode.  No evidence of cirrhosis of the liver was found.  The Veteran had never had hepatitis C.  No evidence of liver malignancy was found.  The Veteran was observed to be well-developed and well-nourished.  The Veteran's liver appeared to be of normal size. There was no evidence of malnutrition.  The examiner provided diagnosis of status post hepatitis A, status post hepatitis B manifested by hepatitis B core antibodies.  The examiner stated that the Veteran had never had hepatitis C.  Also, the examiner noted that hepatitis A could cause complete cure with no liver function damage as a residual.  

In May 2010 VA examination, the Veteran reported that during the in-service incapacitating episode, he had weakness, tiredness, jaundice, was unable to perform exercises, and weight loss.  He was hospitalized for more than a month, but no more hospitalization after the initial episode.  Abdominal ultrasound was conducted and the result was normal with impression of fatty liver and/or hepatocellular disease and cholelithiasis without cholecystitis.  The examiner provided diagnosis of hepatitis A, revolved, hepatitis B, inactive and found no effects on usual daily activities.  

Most recently, in January 2018 VA examination, no active symptoms were found.  Continuous medication was found not to be required to control his liver conditions.  The Veteran had no incapacitating episode (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) due to the liver conditions in the past 12 months.  The Veteran does not currently have signs or symptoms attributable to cirrhosis of the liver, biliary cirrhotic phase of sclerosing cholangitis.  The Veteran does not need liver transplant.  No injury to the liver was found.  The Veteran has no other pertinent physical findings, complications, conditions, signs, or symptoms related to any diagnosed conditions.  Finally, the Veteran's liver condition was found not to impact his ability to work.  

Given the foregoing, the Board finds that an initial, compensable rating for hepatitis is not warranted.  The evidence reveals that the Veteran does not have any symptoms attributable to his hepatitis A or hepatitis B throughout the appeal period.  The Veteran did have an incapacitating episode in service, but after that, the evidence supports a finding that he had no symptom or treatment.  In some examinations, the Veteran reported fatigue, nausea, and dizziness, but there is no evidence that these symptoms are attributable to his hepatitis A and B.  

The Veteran and his representative assert that the Veteran experiences upper right quadrant pain, fatigue, nausea, and dizziness daily.  See August 2014 VA Form 9; August 2014 Veteran's statement.  However, the medical evidence of record shows no episode of manifestation of those symptoms severe enough to require bed rest and treatment by a physician.  The medical record does not reflect that severe symptoms manifested for at least a week.  As such, the Veteran's reported symptoms do not rise to the level of a compensable rating under the diagnostic code.  

Lastly, the Veteran reports no current symptom of anorexia.  He did experience anorexia and weight loss during the in-service incapacitating episode, but the evidence suggests that the Veteran has been well nourished during the appeal period.  

Therefore, the preponderance of the competent probative evidence demonstrates that the Veteran's hepatitis has been asymptomatic and therefore, an initial, compensable rating is not warranted.  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 claim the doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).  


ORDER

Entitlement to an initial compensable rating for residuals of hepatitis A and B is denied.  



____________________________________________
Evan M. Deichert
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


