Citation Nr: 0012941 Decision Date: 05/16/00 Archive Date: 05/22/00 DOCKET NO. 96-18 166A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to a compensable rating for Hodgkin's lymphoma from September 27, 1993 to September 21, 1995. 2. Entitlement to a compensable rating for Hodgkin's lymphoma from September 22, 1995. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from December 1975 to December 1978, and from September 1980 to January 1989. Initially, the Board of Veterans' Appeals (Board) notes that this matter was previously remanded in December 1999 for primarily due process considerations. The Board finds that the action requested in the remand has been accomplished and that this matter is now ready for appellate review. The Board further observes that although the veteran apparently made an effort to file a July 1993 notice of disagreement with the December 1991 rating decision which reduced the rating that was originally assigned for Hodgkin's lymphoma from 100 percent to noncompensable, the notice of disagreement was not timely filed, and was therefore treated by the regional office (RO) as an application for an increased evaluation. The record reflects that the RO's denial of this and additional applications for a compensable evaluation were also not timely appealed. Thereafter, the veteran was found to have submitted a timely notice of disagreement and substantive appeal with respect to a May 1995 rating decision's denial of an application for an increased rating filed on September 27, 1994. Thus, the Board finds that the issue on appeal is confined to a consideration of entitlement to a compensable rating from September 27, 1993. This date would be one year earlier than the claim for increase received on September 27, 1994, which is the earliest possible date an increased rating could be granted based upon 38 C.F.R. § 3.344(o)(2) (1999). Under this regulation, the effective date of an award of increased compensation is the date of receipt of the claim for increase, or the earliest date as of which it is factually ascertainable that an increase in disability occurred, if the claim is received within one year from such date. In addition, the Board notes that the rating criteria for this disability were changed effective September 22, 1995 (the Board's remand incorrectly identified the effective date as June 6, 1996), and that the Board is therefore precluded from applying the new rating criteria prior to the effective date of the new criteria. See VAOPGCPREC 3-2000. Accordingly, this appeal has been separated into several issues. After the effective date of the change in rating criteria, manifestations must be considered under both the "old" and "new" rating criteria, and the rating assigned should be in accordance with whichever criteria are more favorable. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Finally, the record reflects that since the veteran was service connected for Hodgkin's lymphoma in a rating decision in April 1989, the veteran has been service connected and assigned separate compensable ratings for other disorders determined to be causally related to this service-connected disability, including a scalp disorder, a pulmonary disorder, and status post carotid subclavian bypass. Therefore, the Board will not consider these manifestations in its assessment of entitlement to a compensable evaluation for Hodgkin's lymphoma from September 27, 1994. 38 C.F.R. § 4.14 (1999). In order for the Board to evaluate the ratings assigned for the separately rated manifestations of Hodgkin's disease, separately prosecuted claims would have to be properly developed on appeal. FINDINGS OF FACT 1. For the period of September 27, 1993 to September 21, 1995, the veteran's Hodgkin's lymphoma was manifested by symptoms that were not productive of occasional high-grade fever, mild anemia, fatigability, or pruritus. 2. From September 22, 1995, the veteran's Hodgkin's lymphoma was manifested by symptoms that were not productive of occasional high-grade fever, mild anemia, fatigability, pruritus, or other ratable residuals that are not already service connected as secondary to Hodgkin's lymphoma. CONCLUSIONS OF LAW 1. The schedular criteria for a compensable evaluation for Hodgkin's lymphoma for the period of September 27, 1993 to September 21, 1995, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.117, Diagnostic Code 7709 (effective prior to September 22, 1995). 2. The schedular criteria for a compensable evaluation for Hodgkin's lymphoma since September 22, 1995, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.117, Diagnostic Code 7709 (effective immediately before and after September 22, 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The Board notes that the claim is well grounded and adequately developed. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Disability evaluations are determined by the application of a schedular rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of 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. The rating schedule recognizes that a veteran's disability evaluation may require reratings in accordance with changes in his condition. It is thus essential, in evaluating a disability, that it be viewed in relation to its history. 38 C.F.R. § 4.1. Hodgkin's lymphoma was previously rated as lymphogranulomatosis (Hodgkin's disease). 38 C.F.R. § 4.117, Code 7709, effective prior to September 22, 1995. Under the "old" criteria, a 30 percent rating is warranted for lymphogranulomatosis with occasional low-grade fever, mild anemia, fatigability or pruritus. A 60 percent rating requires general muscular weakness with loss of weight and chronic anemia or lymphogranulomatosis with secondary pressure symptoms, such as marked dyspnea, edema with pains and weakness of an extremity, or other evidence of severe impairment of general health. A 100 percent rating requires acute (malignant) types or chronic types with frequent episodes of high and progressive fever or febrile episodes with only short remissions, generalized edema, ascites, pleural effusion, or severe angina with marked general weakness. 38 C.F.R. § 4.117, Diagnostic Code 7709, effective prior to September 22, 1995. The 100 percent rating will be continued for one year following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. At this point, it there has been no local recurrence or invasion of other organs, the rating will be made on the residuals. As of September 22, 1995, Hodgkin's lymphoma with active disease or during a treatment phase will be assigned a 100 percent evaluation. This rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory Department of Veterans Affairs (VA) examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (1999). If there has been no local recurrence or metastasis, rate on residuals. 38 C.F.R. § 7709, effective as of September 22, 1995. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (1999). The history of this service-connected disability shows that service connection for Hodgkin's lymphoma was originally granted in April 1989, with a 100 percent rating assigned, based on service medical records which revealed an August 1988 diagnosis of Hodgkin's lymphoma, nodular sclerosing type, for which the veteran was placed on chemotherapy. A June 1989 rating decision additionally service connected biopsy scars on the left neck and armpit areas, and noted that VA examination in May 1989 revealed that the veteran had completed chemotherapy and was now scheduled for radiation therapy. A September 1989 rating decision found that the veteran had completed six cycles of chemotherapy in February 1989 and radiation treatment in June 1989. Consequently, a new VA examination was to be scheduled for appropriate assessment of the residuals of Hodgkin's lymphoma. A September 1990 rating decision proposed to reduce the evaluation for the veteran's Hodgkin's lymphoma from 100 percent to noncompensable based on VA hospitalization records for the period of June to August 1990. There records were found to reflect that chemotherapy and radiation treatment were completed in February and June 1989, respectively, and that the veteran's Hodgkin's lymphoma had remained in remission. After notifying the veteran of the intention to reduce the 100 percent rating for Hodgkin's lymphoma at his most recent address of record, a December 1990 rating decision formally assigned a noncompensable rating effective from March 1, 1991. Although the RO continued to find the veteran's Hodgkin's lymphoma to be in remission in a rating decision in August 1991, as a result of the veteran's assertion that he did not receive notice of the RO's predetermination letter of October 1990, a November 1991 rating decision extended the effective date of reduction from 100 percent to noncompensable to February 1, 1992. An application for an increased evaluation for Hodgkin's lymphoma was denied in a rating decision in April 1993 based on a finding that the relevant medical evidence revealed that the veteran's Hodgkin's lymphoma remained in remission. This rating decision did, however, grant service connection for scalp disorder as due to the veteran's Hodgkin's lymphoma, and assigned a 10 percent evaluation for this disability. A February 1994 rating decision denied an application for an increased evaluation on the basis that no recurrence or symptoms were shown. A June 1994 rating decision noted that a July 1993 notice of disagreement was not timely as to the December 1991 rating decision's reduction of the evaluation for Hodgkin's lymphoma. An April 1995 rating decision again denied an application for an increased evaluation for Hodgkin's lymphoma, but granted service connection for status post carotid subclavian bypass as secondary to Hodgkin's lymphoma. This disability was assigned a 100 percent evaluation, effective from July 20, 1994, and a 10 percent evaluation, effective from October 1, 1994. VA treatment reports for the period of May 1991 to February 1995 were found to indicate that an angiogram on June 1, 199[4] was interpreted to reveal a right subclavian occlusion over a 2.0 centimeter segment distally to the common carotid. The occlusion was noted to be secondary to radiation therapy for Hodgkin's lymphoma, which was indicated to be remaining in remission. A carotid subclavian bypass graft of the right upper extremity was then performed on July 20, 1994. Following a 100 percent evaluation for surgery and convalescence to October 1, 1994, residuals of the carotid subclavian bypass were evaluated as 10 percent disabling by analogy to the major symptoms shown under 38 C.F.R. § 4.104, Diagnostic Code 7121, as the veteran was noted to have swelling and edema of the right upper extremity. The veteran's Hodgkin's lymphoma, however, was determined to be continuing in remission and therefore noncompensable. It is noted that additional VA outpatient treatment records for the period of October to December 1994 reflect that in November 1994, the veteran complained of experiencing the signs of arthritis, and the diagnostic impression included osteoarthritis of the hands, knees, and shoulders. In the middle of the month, the veteran complained of bilateral swelling of the upper extremities, and at the end of the month, the veteran reported a two week history of swelling in his hands and fingers, and pain in his hands, shoulder and neck. This complaint carried over into December 1994, at which time examination during the middle of the month revealed swelling in the hands in a "puffy" pattern without pitting edema. At this time, it was believed that the veteran had possibly developed vascular complications from his previous surgery to remove obstruction in the subclavian/carotid system. The physician further commented that there was no convincing evidence of reactivation/recurrence of Hodgkin's disease, but that this would continue to bear periodic monitoring (e.g. to include a repeat computed tomography (CT) of the chest in a few months to check for progression). Additional VA outpatient and hospital records for the period of January to February 1995 reflect that in early January 1995, the veteran complained of continuing swelling in his arms, hands, and fingers, but that his facial swelling, redness, pain and itching had decreased. Examination at this time revealed decreased swelling of the face and no infection, and at the end of January 1995, he was noted to be mildly compromised/malnourished (II) as secondary to Hodgkin's lymphoma and diabetes mellitus, and he reported swelling in both upper extremities but no pitting edema. A VA hospital summary from February 1995 reflects that the veteran was admitted at the end of the previous month with diagnoses including status post Hodgkin's lymphoma currently in remission, upper extremity swelling believed to be related to a lymphatic obstruction in the upper body, acute dyspnea possibly secondary to obstructive lung disease, and status post right subclavian artery bypass with chemotherapy and radiation therapy. The veteran's complaints at this time were increased dyspnea on exertion, swelling in the face and upper extremity and chest tightness. VA outpatient records from February 1995 reflect abnormal pulmonary function examination and a diagnosis of obstructive lung disease. VA outpatient treatment records from February to June 1995 reflect that in March 1995, it was again noted that the reason for the veteran's swelling of the upper extremities was not clear and that there was no current evidence of activation of Hodgkin's disease. Two days later, there was a diagnosis of possible Cushing's syndrome as evidenced by symptoms of swelling and fatigue, and several days thereafter, it was noted that the veteran was being evaluated for possible Cushing's syndrome, which was indicated to have a characteristic of muscle weakness/myopathy. Other systems possibly involved included adrenal glands, cardiovascular, pituitary and/or musculoskeletal. In April 1995, the veteran continued to complain of dyspnea and swelling and in May 1995, the veteran reported no improvement. At this time, the veteran's dyspnea was assessed to be possibly secondary to his chronic heart failure with a component of obstructive lung disease. Private pulmonary consultation at the B. Medical Clinic in June 1995 revealed the veteran's history of Hodgkin's disease in 1988 and the subsequent development of intermittent dyspnea in 1991. The veteran reported that he had been told that he had chronic obstructive pulmonary disease (COPD), congestive heart failure, and possibly pneumonia, and the veteran continued to complain of dyspnea on exertion and occasionally at rest. It was noted that the veteran also generally complained of chronic fatigue and weakness. The veteran also complained of muscle cramps and chronic joint pain and swelling. With respect to Hodgkin's lymphoma, the veteran indicated that a recent CT of the abdomen revealed small lesions in the abdomen, which were described as "not significant." The veteran noted that at the time that Hodgkin's was diagnosed in 1988, he underwent a laparotomy, which revealed Hodgkin's lesions in the liver which were removed. Examination of the lungs revealed some diminished respiratory sounds but no wheezes or rhonchi, and the abdomen was found to be nontender and without palpable masses. The impression was history of Hodgkin's disease treated by chemotherapy and radiation to the neck and chest, status post laparotomy reportedly involving resection of liver lesions in 1992. It was also noted that the veteran had dyspnea which could be due to a combination of asthma/COPD. VA outpatient records from July 1995 reflect that pulmonary function tests revealed that the veteran's vital capacity was low. A July 1995 VA medical statement from Dr. B. indicates that Dr. B. had been following the veteran since November 1994, and that the liver surgery in 1992 revealed benign reactive lymph nodes. When Dr. B. began following the veteran in November 1994, the veteran complained of dyspnea that resulted in a hospital admission in January 1995. At that time, Dr. B. noted that the veteran also had swelling of his upper extremities for which he underwent extensive evaluation. Pulmonary tests demonstrated a low vital capacity, and while Dr. B. had opined the impression that the veteran's decreased cardiac function might have been the result of Adriamycin therapy, the cause of pulmonary abnormalities was indicated to be unclear. The current diagnoses included severe dyspnea secondary to restrictive lung disease of unclear etiology, left ventricular dysfunction with global hypokinesis and an ejection fraction of 40 percent, possibly secondary to Adriamycin toxicity, Hodgkin's lymphoma, status post radiation therapy and chemotherapy, and status post carotid subclavian bypass. It was noted that the veteran's medical condition was not static, and that his pulmonary function could continue to deteriorate. A VA outpatient record from August 1995 reflects an assessment which included restrictive lung disease. At this time, the examiner commented that if new lesions were seen on CT, biopsy to rule out lymphoma spread would be indicated. Private medical records from October 1995 reflect that a lung biopsy was interpreted to reveal mild to moderate interstitial fibrosis. VA outpatient records for the period of November 1995 to September 1996 reflect that in November 1995, the diagnosis included history of Hodgkin's disease with no recurrence. In April 1996, the veteran complained of an increase in the size of a growth under the left armpit which was diagnosed as an inflamed skin tag of the left axilla. In May 1996, the veteran complained of increased dyspnea indicated to possibly be secondary to restrictive lung disease, and in September 1996, the diagnoses were noted to include restricted lung disease secondary to radiation and chemotherapy for Hodgkin's lymphoma, Hodgkin's lymphoma, and left ventricular dysfunction secondary to chemotherapy treatment. An October 1996 VA medical statement from Dr. W. reflects the opinion that the long-term complications of the prior treatment for the veteran's Hodgkin's disease had almost certainly played a major role in the deterioration of the veteran's physical condition. These complications were noted to include dyspnea associated with the veteran's restrictive lung disease causally related to radiation therapy, and peripheral edema and decreased cardiac ejection fraction of 40 percent, believed to be causally related to chemotherapy. A December 1996 rating decision denied a compensable rating for the veteran's Hodgkin's lymphoma, but granted service connection for a pulmonary disability as secondary to service-connected disability, assigning a 30 percent rating from November 1994, a 60 percent evaluation from January 1995, and a 100 percent evaluation from September 1996. VA outpatient records for the period of July to August 1999 reflect that the veteran was being followed status post a right brachial carotid bypass during which he sustained a right myocardial infarction with resulting left hemiparesis. VA housebound status examination in August 1999 revealed a diagnosis of stroke with left hemiparesis. VA outpatient records for the period of September to December 1999 reflect that the veteran continued to be followed for his heart condition. His Hodgkin's disease was noted to be stable in September and October 1999, and again in December 1999, and in November 1999 his Hodgkin's disease was noted by history only. II. Analysis In evaluating the medical evidence for the period of September 27, 1993 to September 21, 1995, the Board finds that a compensable rating was not warranted under the "old" criteria applicable to Hodgkin's lymphoma. While the evidence of record for this period clearly shows swelling in the upper extremities and increased dyspnea, these symptoms were not indicated to be manifestations of Hodgkin's lymphoma, and may therefore not be considered representative of active residuals of the disease. For example, even though the veteran complained of fatigue and weakness during this time frame, this complaint was not directly linked to Hodgkin's lymphoma. In fact, the Board notes that in December 1994 and February 1995, the veteran's Hodgkin's lymphoma was noted to continue to be in remission. Moreover, as was alluded to earlier, the veteran's respiratory and heart problems were ultimately separately service-connected and compensably rated as secondary to Hodgkin's disease, and it would violate the rule against pyramiding to consider the same symptoms for an increased rating for another service- connected disability under a different Diagnostic Code. 38 C.F.R. § 4.14. Consequently, as the medical evidence does not reflect any symptoms specifically associated with the veteran's Hodgkin's disease during this period, the Board finds that there are no symptoms of the type of occasional low-grade fever, mild anemia, fatigability or pruritus required for a 30 percent rating under the "old" criteria found in Diagnostic Code 7709. The Board finds that the record clearly does not evidence the type of symptoms during this period required for ratings even higher than 30 percent under former 38 C.F.R. § 4.117, Diagnostic Code 7709 (effective prior to September 22, 1995). Consequently, based on the above, the Board finds that the veteran's Hodgkin's lymphoma did not more nearly approximate the criteria necessary for a compensable rating during the period of September 27, 1994 to September 21, 1995. Since September 22, 1995, while the evidence more clearly supports a relationship between the veteran's heart and pulmonary disability and the treatment the veteran received for his Hodgkin's lymphoma, it continues to document no recurrence of the veteran's Hodgkin's lymphoma. Furthermore, the medical records and reports have not shown any evidence of occasional low-grade fever, mild anemia, fatigability or pruritus specifically noted as residuals of Hodgkin's lymphoma. The regulations provide that a 100 percent evaluation will be assigned for active disease and a period of six months following cessation of chemotherapy. The record demonstrates that the veteran's condition is stable with no recurrence and that his last cycle of chemotherapy was long before September 22, 1995. Thereafter, the regulations state that ratings will be assigned based on residuals shown on VA examination. However, the medical evidence of record does not demonstrate any residuals of his Hodgkin's lymphoma. Therefore, a compensable rating for Hodgkin's lymphoma from September 22, 1995 under any of the pertinent old or new criteria is also not warranted. In this regard, the Board notes whether the "old" or the "new" criteria is more favorable to the veteran is not evident on this record. In any event, since he would not be entitled to an increased rating under either criteria, the question as to which is more favorable is moot. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an increased (compensable) evaluation for Hodgkin's lymphoma. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to a compensable rating for Hodgkin's lymphoma for the period of September 27, 1993 to September 21, 1995, is denied. Entitlement to a compensable rating for Hodgkin's lymphoma from September 22, 1995, is denied. Richard B. Frank Member, Board of Veterans' Appeals