Citation Nr: 1508984 Decision Date: 03/02/15 Archive Date: 03/17/15 DOCKET NO. 10-27 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a compensable rating for large cell lymphoma, B-cell type. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that granted noncompensable service connection for large cell lymphoma, B-cell type. In April 2014, the Veteran testified at a hearing held via video-conference. In June 2014, the claim was remanded for further development. FINDING OF FACT There is no competent evidence of active disease or compensable residual symptoms associated with the Veteran's large cell lymphoma, B-cell type. CONCLUSION OF LAW The criteria for an initial compensable rating for large cell lymphoma, B-cell type have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7715 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran with notice of all of this information in October 2007. As to duty to assist, VA obtained VA and private treatment records and provided the Veteran with two VA examinations during the appeal. The VA examinations were adequate, as the examiners provided the relevant findings for the Board to make an informed decision. The previous remand directed that a new VA examination be accomplished, which was done in July 2014. With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ 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, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. The Board concludes VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis 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. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2014). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2014). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Non-Hodgkin's lymphoma is rated under Diagnostic Code 7715, which provides a 100 percent disability rating when there is active disease or during a treatment phase. Six months after discontinuation of treatment, the appropriate disability is to be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the disability is rated based on residuals. 38 C.F.R. § 4.118. The Veteran contends that although his lymphoma is in remission, he suffers from such residuals as fatigue, numbness and tingling in his extremities, erectile dysfunction, memory loss, and depression. On October 2008 VA examination, it was noted that the Veteran was treated for lymphoma in 2005 and 2006. During the treatments, he had side effects to include arthritis in his hands and shoulders, as well as numbness in the great toes and hands. He continued to experience fatigue. He also reported reflux. He stated that he still experienced arthritis and reflux. In February 2009, the Veteran's private physician submitted a statement describing the Veteran's lymphoma treatment in 2005. The physician stated that the Veteran's complaints of memory loss and paresthesias on the soles of his feet "may" have resulted from chemotherapy. On January 2010 VA examination, the Veteran brought reports from his radiologist which showed no evidence of recurrence of lymphoma. A comprehensive metabolic panel was also reviewed which was normal. The February 2009 letter was also reviewed. Physical examination resulted in a diagnosis of LCL B type currently in remission with residuals of chronic fatigue and arthritis. However, in February 2010, an addendum to the January 2010 examination was completed at which time it was concluded that although the Veteran experienced residual symptoms at the time that he received chemotherapy in 2005, to include weakness in his shoulders and hands, numbness in his toes and fingers, and fatigue, his lymphoma was now in remission and any residuals of chemotherapy resolved three years later. His current complaints of fatigue were subjective and not related to chronic fatigue syndrome. There were no objective findings of fatigue. The current symptoms of numbness and tingling in the hands and toes were not residuals of his chemotherapy regimen. The weakness in his shoulders and hands that was documented as having occurred during chemotherapy treatments were arthralgias, not arthritis. One would not expect such arthralgias to continue past the three years after completion of the chemotherapeutic regimen. On July 2014 VA examination, it was noted that a March 2014 tumor marker was negative and there was no indication of recurrence of lymphoma. The Veteran had symptoms of occasional fatigue. No residuals were found or diagnosed. First, the Board finds that a compensable rating is not warranted under DC 7715, as there is no evidence of recurrence of lymphoma at any time during the appeal period. Next, the Board finds that there are no compensable residuals of lymphoma. Although the Veteran contends that he suffers from a variety of residuals related to his lymphoma and 2005 chemotherapy treatment, the competent and probative medical evidence weighs against such a finding. While the January 2010 VA examiner found chronic fatigue and arthritis secondary to lymphoma, such opinion was rendered by a physicians assistant, whereas in February 2010, a medical doctor, who was also a chief of the department, provided an addendum opinion that the Veteran's reported residuals were only subjective in nature and that he did not currently suffer from chronic fatigue syndrome or arthritis secondary to his lymphoma and chemotherapy treatments. The physician explained that while the chemotherapy that the Veteran underwent in 2005 was known to cause such symptoms as arthralgias and fatigue, such was known to only affect the patient for up to three years following treatment. However, there was no evidence that the Veteran suffered from any objective residual related to his lymphoma or chemotherapy. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Because, while the Veteran is competent to describe certain symptoms such as fatigue, numbness and tingling of the extremities, and loss of memory, the Board accords his statements regarding the etiology of such disorders less probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this particular case, the Veteran does not exhibit the qualifying medical knowledge to relate his described symptoms to his service-connected lymphoma. Rather, the 2008, February 2010, and 2014 VA examiners found no objective indication of residuals related to his lymphoma that was in remission. While the Veteran reported subjective symptoms, no residual disability was diagnosed. Moreover, the Veteran's numbness and tingling in the feet and hands have since been attributed to his service-connected diabetes mellitus. The Board also places lower probative weight on the April 2009 private opinion because that opinion is speculative in nature. The physician stated only that the Veteran's memory loss and paresthesias "may" be related to his lymphoma treatment. However, the physician provided no rationale or explanation for that conclusion. And, as pointed out above, the Veteran's symptoms of paresthesias have since been attributed to a different cause, lessening the value of the opinion. Thus, the Board accords greater weight to the VA opinions in this case rather than on the April 2009 private opinion. Although the Veteran contends that he suffers from depression and erectile dysfunction as a residual of his lymphoma, and the record demonstrates a diagnosis of both conditions, there is no medical nexus to relate the current depression or erectile dysfunction with his service-connected lymphoma. Moreover, the Veteran has stated that he suffers from depression due to his fatigue, memory loss, and other physical ailments that have been medically determined, by the competent evidence of record, to not be related to his lymphoma. Thus, absent a medical link between these disorders and his lymphoma, separate compensable ratings cannot be assigned. Specifically, no such residuals were found on the most recent VA examination. Of note, the Veteran is already in receipt of service connection for posttraumatic stress disorder and thus, does receive some compensation for his psychiatric symptoms. Finally, although the reported symptom of weakness was noted on 2014 VA examination, such is not a ratable residual, as physical examination was negative for a diagnosable disability manifested by the complaint of weakness or fatigue. The 2010 VA examiner clarified that the Veteran does not suffer from chronic fatigue syndrome. In summary, despite the Veteran's contentions, the competent and probative medical evidence of record does not support a finding that the Veteran suffers from compensable residuals of his lymphoma in remission at any time during the appeal period. The medical evidence, to include VA examination conducted from October 2008 to July 2014, as well as the private and VA treatment records dated throughout the appeal period, are negative for any indication of diagnosed residuals related to the service-connected lymphoma. Accordingly, a compensable rating for lymphoma must be denied. III. Other Considerations A claim for total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Veteran has not stated, and the evidence does not suggest, that he is unemployable due to his service-connected lymphoma. Rather, he continues to work in his own business as an accountant. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disability. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lymphoma with the established criteria found in the rating schedule. The discussion above reflects that the symptoms of the Veteran's lymphoma as it is contemplated by the applicable rating criteria. The competent and probative medical evidence of record shows that the Veteran's lymphoma is in remission and there are no separately ratable residuals. The effects of the Veteran's disability has been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the preponderance of the evidence is against the claim at any time during the pendency of the appeal, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for large cell lymphoma, B-cell type is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs