Citation Nr: 1535513	
Decision Date: 08/19/15    Archive Date: 08/31/15

DOCKET NO.  14-31 813A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a compensable disability rating for ileum adenocarcinoma status post laparotomy with ileocecectomy, with metastasis to the liver, from March 4, 2014, to July 14, 2014.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Orfanoudis, Counsel





INTRODUCTION

The Veteran had active service from June 1992 to July 2012.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama, that granted service connection for ileum adenocarcinoma status post laparotomy with ileocecectomy and assigned an initial 100 percent disability rating from November 2, 2012, and a noncompensable disability rating from March 4, 2014.  The Veteran expressed disagreement with the noncompensable disability rating effective as of March 4, 2014, and perfected a substantive appeal.  Jurisdiction of this matter is currently with the RO located in St. Petersburg, Florida.

The Board notes that the assignment of a staged rating which includes a higher disability rating followed by a lower disability rating does not require application of the reduction notice rule.  The procedural protections regarding reduction of stabilized evaluations under 38 C.F.R. § 3.344 only apply to prospective rating reductions and are inapplicable to retroactively assigned staged disability ratings, assigned as part of an initial or increased disability rating.  Thus, the provisions of 38 C.F.R. § 3.344 do not apply here.  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).

During the pendency of this appeal, by rating action dated in June 2015, the St. Petersburg RO awarded service connection for liver cancer associated with ileum adenocarcinoma status post laparotomy with ileocecectomy, and assigned an initial 100 percent disability rating effective as of July 15, 2014.  The Board notes that the RO erred in characterizing the Veteran's disability as liver cancer, as the disability was actually a metastasis of the already service-connected ileum adenocarcinoma.  See May 28, 2015 letter from A. Weber, MD.  As such, the Board has characterized the issue on appeal as set forth on the title page.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

Throughout the appeal period, the Veteran's ileum adenocarcinoma status post laparotomy with ileocecectomy was manifested by metastasis to the liver.


CONCLUSION OF LAW

The criteria for a 100 percent rating for ileum adenocarcinoma status post laparotomy with ileocecectomy, with metastasis to the liver, from March 4, 2014, to July 14, 2014, are met.  38 U.S.C.A. §§ 1155, 5103, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.114, Diagnostic Code 7343 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision.

Compensable Disability Rating from March 4, 2014, to July 14, 2014  

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Service connection for ileum adenocarcinoma status post laparotomy with ileocecectomy was granted in March 2014, wherein an initial 100 percent disability rating was assigned from November 2, 2012, and a noncompensable disability rating was assigned from March 4, 2014.  In June 2015, service connection for liver cancer associated with ileum adenocarcinoma was granted, wherein a 100 percent disability rating was assigned effective as of July 15, 2014.  As indicated above, as the Veteran's disability is a metastasis of the service-connected ileum adenocarcinoma and not a separate liver cancer, the issue to be addressed herein is 
entitlement to a compensable disability rating for service-connected ileum adenocarcinoma status post laparotomy with ileocecectomy, with metastasis to the liver, from March 4, 2014, to July 14, 2014.

The criteria under which the 100 percent disability rating for the ileum 
adenocarcinoma status post laparotomy with ileocecectomy were initially assigned are provided under Diagnostic Code 7343, which rates impairment from malignant neoplasms of the digestive system.  Under Diagnostic Code 7343, a 100 percent disability rating is warranted for malignant neoplasms of the digestive system, exclusive of skin growths, and a 100 percent rating shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure.  Six months after discontinuation of such treatment, the appropriate disability rating shall be determined by mandatory VA examination.  If there has been no local recurrence or metastasis it is to be rated on residuals.  38 C.F.R. 
§ 4.114, Diagnostic Code 7343.

Private medical record from Gulf Coast Medical Center show that in December 2012, the Veteran underwent exploratory laparotomy wherein an ileocecectomy was conducted upon a finding of adenocarcinoma. 
A VA examination report dated on March 4, 2014, shows a diagnosis of ileum adenocarcinoma, status post laparotomy with ileocecectomy.  The examiner opined that the Veteran's cancer was in remission, with treatment completed in December 2012, the date of surgical resection.  The examination report indicates that there were no current functional limitations, and no signs or symptoms attributable to the intestinal surgery.  The Veteran was said to not have weight loss or an inability to gain weight or interference with absorption and nutrition.  There was also no evidence of an ileostomy, persistent intestinal fistula, or anemia.

A private medical record from Northwest Florida Hematology Oncology dated July 
1, 2014, shows that the Veteran was said to have Stage IIA ilium cancer, status post resection in December 2012.  Residual diarrhea, and complaints of abdominal pain and nausea following the surgery were indicated.  His case was discussed regarding the stage, prognosis, and treatment of small bowel cancer, as well as the concept of survivorship and patterns of recurrence.  Given Stage II disease, with ample nodal sampling, no adjuvant therapy was warranted.  Regular surveillance and imaging was to be undertaken.  Three to four month clinical evaluations and annual imaging for five years was planned.

Surveillance computed tomography (CT) conducted on July 8, 2014, revealed four 
low attenuation lesions in the liver, likely cysts, that were stable, and a new mass on the right hepatic lobe.  CT guided liver biopsy conducted on July 11, 2014, revealed moderately differentiated adenocarcinoma consistent with known ileal cancer.

The May 2015 letter from Dr. Weber provides a history of the Veteran's cancer as set forth above, and explains that he incurred a recurrence with liver metastasis on CT surveillance in July 2014.  Aggressive measures were said to have been pursued with chemotherapy and surgical metastectomy, but the cancer quickly recurred and has been refractory to further resection and systemic chemotherapy.  The Veteran was said to be on palliative chemotherapy in hopes of slowing tumor progression, and was seeking clinical trial options.  His cancer was said to be incurable.

Upon careful review of the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that a 100 percent rating for the ileum adenocarcinoma status post laparotomy with ileocecectomy, with metastasis to the liver, is warranted for the period from March 4, 2014, to July 14, 2014.  While the metastasis to the liver was first realized on private CT surveillance in July 2014, there is simply no evidence that the metastasis was not present at the time of the March 2014 VA examination.  Critically, the March 2014 VA examiner conducted no imaging studies or diagnostic procedures other than a complete blood count, which is not dispositive on the matter of recurrence.  Therefore, given the lack of complete diagnostic testing in March 2014, the nature of the Veteran's cancer as described by Dr. Weber, and the short period of time between the VA examination and CT surveillance establishing metastasis, the Board finds that the criteria for a 100 percent rating for the ileum adenocarcinoma status post laparotomy with ileocecectomy, with metastasis to the liver, from March 4, 2014, to July 14, 2014, are met.


ORDER

A 100 percent rating for ileum adenocarcinoma status post laparotomy with ileocecectomy, with metastasis to the liver, from March 4, 2014, to July 14, 2014, is granted, subject to the applicable criteria governing the payment of monetary benefits.



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs