Citation Nr: 1802438 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-28 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial compensable rating for non-Hodgkin's lymphoma. 2. Entitlement to service connection for neutropenia/leukopenia, to include as secondary to non-Hodgkin's lymphoma. REPRESENTATION Veteran represented by: Michigan Veterans Affairs Agency ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1971 to June 1973, including service in the Republic of Vietnam from July 1971 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) from November 2006, August 2007, and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By correspondence dated May 2017, the Veteran indicated that he would not be able to attend his previously-scheduled hearing because he is incarcerated. The Veteran's request for a hearing is deemed to be withdrawn. See 38 C.F.R. § 20.704(d). The Board has re-characterized the Veteran's claim of entitlement to service connection for neutropenia/leukopenia to a claim of entitlement to service connection for neutropenia/leukopenia, to include as secondary to non-Hodgkin's lymphoma. This is based on the Veteran's consistent characterization of his claim. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that when a claimant makes a claim, the claimant is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In April 2015, the Board remanded the Veteran's claims so that a supplemental statement of the case (SSOC) could be sent to the Veteran's current address. SSOCs dated September 2014 and October 2014 had been sent to the incorrect address. By correspondence dated May 2015, the Veteran provided a corrected address and asked that the SSOCs be mailed to him there, and the Veteran has referenced the SSOC. The issue of entitlement to service connection for neutropenia/leukopenia, to include as secondary to Non-Hodgkin's lymphoma, is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT The Veteran's non-Hodgkin's lymphoma has been in remission since 1986 and is not characterized by active disease or treatment. CONCLUSION OF LAW The criteria for a compensable disability rating for non-Hodgkin's lymphoma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.117, Diagnostic Code 7715 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When 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. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In an August 2007 rating decision, the RO granted service connection for lymphoma at an initial non-compensable rating under Diagnostic Code 7715 from May 2, 2006, the date that the claim was filed. The Veteran is appealing the rating aspect of that decision. Diagnostic Code 7715 provides compensation for non-Hodgkin's lymphoma. 38 C.F.R. § 4.117. A 100 percent rating is appropriate for active disease or during a treatment phase. Id. In every case where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The evidence does not support a compensable rating. The Veteran began chemotherapy in September 1985, shortly after he was diagnosed with "T-cell, large cell lymphoma." See September 1985 prison medical record. He continued chemotherapy through at least April 1986. See April 1986 prison medical record. Medical records indicate that he has been in remission since that time. See March 2014 VA examination; March 2009 prison medical record. An April 2009 CT scan was negative for cancer. See April 2013 VA medical record. Consistent with this, VA medical opinions dated September 2010 and November 2010 indicate that the Veteran "currently has inactive non-Hodgkin's lymphoma" and "is in remission." The weight of this evidence is against a finding that the Veteran's non-Hodgkin's lymphoma is in an active disease state or a treatment phase so as to support a compensable rating. The Veteran does not dispute this finding, but argues that a fair determination of the status of his condition cannot be made until he is properly examined with a bone marrow biopsy. See, e.g., June 2015 lay statement. The duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The Veteran first requested a bone marrow biopsy during a March 2009 prison consultation. Since that time, his requests for a bone marrow biopsy "have been repeatedly denied by the prisons 'HMO.'" See October 2011 statement in support of claim. His prior representative made a formal request for a bone marrow biopsy in May 2014. The Veteran reiterated this request in correspondence received on June 3, 2014. In August 2014, the RO asked a VA service coordinator whether a bone marrow biopsy could be accommodated. See August 2014 e-mail correspondence. The coordinator responded that it could not be accommodated, because the risks of such a procedure outweighed the potential benefits where, as here, the Veteran's CT scan is normal, the Veteran denies enlarged lymph nodes, the Veteran is not on medication for lymphoma, and the lymphoma "is essentially in remission." Id. In a September 2014 VA memo, the RO additionally indicated that the Detroit VAMC "will not allow their doctors to perform their duties while under arms," as would be required for the Veteran under prison policy. For these reasons, the RO has been unable to afford a bone marrow biopsy. VA has documented its attempts to provide the Veteran with a bone marrow biopsy. As it has been determined that a bone marrow biopsy cannot be adequately performed in the prison, the Board finds that no other steps are required, and the duty to assist has been satisfied. For this reason, the Veteran cannot be afforded a bone marrow biopsy, and the Board must decide the Veteran's claim based on the evidence of record alone. As already indicated, the weight of this evidence is against findings supportive of a compensable rating for non-Hodgkin's lymphoma. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. ORDER An initial compensable rating for non-Hodgkin's lymphoma is denied. REMAND An addendum opinion is required that addresses recent arguments and evidence provided by the Veteran. The RO has denied entitlement to service connection for neutropenia/leukopenia on the basis of a March 2014 VA examination, which states: "Neutropenia that is the result of chemotherapy would resolve after completion of the prescribed chemotherapy." See October 2014 SSOC. There are two problems with this medical opinion. First, it does not specifically address leukopenia, which is the subject of the Veteran's claim and indicated in prison medical records. See March 2009 private medical letter ("The patient with [sic] persistent leukopenia."); December 2007 prison medical record (indicating an "Presumed Diagnosis" of "[c]hronic leukopenia"); May 2002 prison medical record (indicating leukopenia). Neutropenia and leukopenia are both disorders characterized by the loss of white blood cells. It appears that these terms can be, but may not always be, used interchangeably. The medical opinion is inadequate, in that it does not address the Veteran's argument that he was diagnosed with neutropenia prior to receiving chemotherapy and has been diagnosed with neutropenia and leukopenia after receiving chemotherapy. See May 2017 lay statement; October 2015 lay statement. An August 1985 Bone Marrow Report states that "[n]o evidence of lymphoma is seen," but that there is "borderline absolute neutropenia." This suggests that neutropenia was present before the Veteran began chemotherapy in September 1985. As also pointed out by the Veteran, there are indications that neutropenia and leukopenia were present after chemotherapy ended. Prison medical records suggest that the Veteran stopped chemotherapy in April 1986. But prison medical records dated March 2009, February 2009, and September 2007 list "neutropenia" as a "Presumed Diagnosis." As already noted, leukopenia was also diagnosed after April 1986. An addendum medical opinion is required to address the evidence of these white blood cell disorders after chemotherapy ended. The RO has obtained treatment records from the Saginaw Correctional Facility up to January 2016. After obtaining appropriate waivers from the Veteran, the RO should obtain all Saginaw Correctional Facility treatment records dated from January 2016, to the present before the remaining issues are decided on the merits. Accordingly, the case is REMANDED for the following action: 1. Secure the appropriate waivers from the Veteran, and following receipt, obtain treatment records from the Saginaw Correctional Facility for the period since January 2016, as well as from any other institution identified by the Veteran. If no records are available or the Veteran does not provide the necessary waivers, the claims folder must indicate this fact. 2. After obtaining any additional records to the extent possible, obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed neutropenia or leukopenia. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: a. Whether the Veteran has any current or previously-diagnosed neutropenia or leukopenia; b. Whether it is at least as likely as not that any current or previously-diagnosed neutropenia or leukopenia was incurred in the Veteran's service; and c. Whether the Veteran has any current or previously-diagnosed neutropenia or leukopenia that (i) is proximately due to the Veteran's service-connected non-Hodgkin's lymphoma or (ii) was aggravated by the Veteran's service-connected non-Hodgkin's lymphoma. In reaching these opinions, the examiner should address the Veteran's arguments and evidence regarding the presence of white blood cell disorders before starting chemotherapy and years after ending chemotherapy. The Veteran's arguments are contained in documents received on May 3, 2017, and October 22, 2015. The documents received on these dates contain the August 1985 Bone Marrow Report, the September 1985 prison medical record, the April 1986 prison medical record, and the May 2002 prison medical record. Other medical documents cited in the "REMAND" section of this opinion can be found in medical records received on June 4, 2014 (March 2009 private medical letter), August 31, 2011 (February 2009 and December 2007 prison medical records), and June 22, 2011 (March 2009 and September 2007 prison medical records). The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran's representative a supplemental statement of the case and give an opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs