Citation Nr: 1804541 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-15 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a compensable evaluation for Kaposi's sarcoma, to include the propriety of the reduction of the evaluation from 100 percent to a noncompensable evaluation effective April 1, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to October 1970 and from February 1973 to January 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In that decision, the RO, in relevant part, reduced the evaluation assigned for the Veteran's Kaposi's sarcoma from 100 percent to a noncompensable evaluation, effective from April 1, 2013. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that proceeding is associated with the record. The record was also held open for 30 days in order to allow the Veteran and his representative additional time to submit medical records. However, to date, no additional medical records have been received. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's Kaposi's sarcoma is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7799-7709. Hyphenated diagnostic codes, including a diagnostic code ending in the digits "99," are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. Here, the Veteran's Kaposi's sarcoma is rated by analogy using the criteria Hodgkin's disease under Diagnostic Code 7709. Under Diagnostic Code 7709, a 100 percent evaluation is warranted for active disease or during a treatment phase. 38 C.F.R. § 4.118, Diagnostic Code 7709. A note to Diagnostic Code 7709 provides that the 100 percent evaluation 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 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). If there has been no local recurrence or metastasis, the disability is rated based on the residuals. 38 C.F.R. § 4.118, Diagnostic Code 7709. Initially, the Board has considered whether the claim at issue would be most appropriately characterized as a formal reduction issue under the substantive provisions of 38 C.F.R. § 3.343 and 3.344. However, Diagnostic Code 7709 contains a temporal element for the continuance of a 100 percent rating. Therefore, the April 2009 rating decision was not a "rating reduction," as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). Historically, in an April 2009 rating decision, the RO granted service connection for Kaposi's Sarcoma and assigned a 100 percent evaluation pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7799-7709, effective from September 27, 2005. The evidence of record shows that the Veteran was diagnosed with Kaposi's sarcoma based on findings from a May 2001 biopsy. The Veteran's Kaposi's sarcoma lesions initially appeared on his right foot and were removed using liquid nitrogen cryotherapy. Thereafter, a September 2005 VA medical record noted that a review of systems was positive for painful lesions on the right foot. At that time, a VA physician stated that the Veteran needed to start antiretroviral treatment due to his high viral load and the recent re-emergence of his Kaposi's sarcoma lesions. During a May 2006 VA examination, the Veteran reported that Kaposi's sarcoma lesions were starting to develop on the bottom of his feet again. He also reported that he started taking antiretroviral medication in January 2006. On physical examination, the examiner noted the presence of black and round lesions on the lateral side of the plantar surface and lateral surface of the Veteran's right foot. The examiner diagnosed the Veteran with Kaposi's sarcoma. A July 2008 VA infectious disease record noted that a physical examination revealed Kaposi's sarcoma on the Veteran's feet. It was also noted that the Veteran's older small multiple lesions were not likely to be contributing to his pain. In a November 2008 VA infectious disease record, a VA physician concluded that the Veteran continued to qualify for a diagnosis of acquired immune deficiency syndrome (AIDS) based on the presence of the human immunodeficiency virus (HIV) and Kaposi's sarcoma. In so doing, the VA physician stated that he reviewed the Veteran's VA medical records pertaining to his treatment for HIV and noted that a 2001 biopsy confirmed the Veteran's diagnosis of Kaposi's sarcoma. It was also noted that the Veteran had persistent Kaposi's sarcoma lesions on his lower extremities. A December 2008 VA infectious disease record noted that the Kaposi's sarcoma lesions on the Veteran's feet seemed less apparent and were not a clinical concern. In an April 2012 VA examination, the examiner stated that the Veteran had an interval history of Kaposi's sarcoma since his last VA examination. She noted that the Veteran was diagnosed with Kaposi's sarcoma on the right foot after a biopsy in 2001, which resolved with medication. However, the Veteran reported ongoing pain on the plantar surface of his right foot, which he contended distracted him from cognitive work and impaired his ability to walk. The examiner indicated that the Veteran had signs, symptoms, or findings attributable to an HIV-related illness, to include Kaposi's sarcoma of the right foot. However, a physical examination of the skin on the plantar surface of the Veteran's right foot was normal with no evidence of residual Kaposi's sarcoma. The examiner stated that the Veteran was prescribed antiretroviral medication on a constant or near-constant basis to improve his immune system and suppress his tumor. It was also noted that indefinite continuous treatment was expected. Additionally, the examiner indicated that the Veteran did not have any residual conditions or complications due to the neoplasm or its treatment. The examiner stated that the weight of medical literature did not support pain as a residual complication of Kaposi's sarcoma in cases where the condition appeared to have regressed or even resolved, as in the Veteran's case. Rather, the literature supported regression and even resolution of Kaposi's sarcoma with antiretroviral treatment. In April 2012, the Veteran's VA infectious disease physician, Dr. T.W. (initials used to protect privacy), provided a summary of his HIV-related diseases and complications. In relevant part, Dr. T.W. stated that the Veteran's Kaposi's sarcoma was not currently active and was not causing any symptoms. However, he also stated that, if the Veteran's CD4 count declined below 200, the condition would likely recur. In a July 2012 rating decision, the RO proposed to reduce the evaluation assigned for the Veteran's Kaposi's sarcoma to a noncompensable evaluation, finding that the April 2012 VA examination showed no recurrence or metastasis. In a January 2013 rating decision, the RO implemented the proposed reduction and assigned a noncompensable evaluation pursuant to 38 C.F.R. §4.118, Diagnostic Code 7799-7709, effective from April 1, 2013. In so doing, the RO noted that the noncompensable evaluation was assigned due to the absence of recently active disease or significantly disabling residuals. In a June 2013 VA dermatology record, the Veteran complained of pain at the site of his Kaposi's sarcoma, but he denied having any new or worrisome lesions. The assessment was Kaposi's sarcoma of the right foot status-post serial liquid nitrogen treatment. A VA nurse practitioner noted that there was no evidence of visible lesions on examination, but indicated that the Veteran was at a high risk for recurrent Kaposi's sarcoma. In so finding, she explained that Kaposi's sarcoma can achieve remission, but there is high chance of recurrence. She also stated that post-treatment pain can be consistent with Kaposi's sarcoma. A July 2013 VA infectious disease record noted that there was no evidence of Kaposi's sarcoma on physical examination. A VA physician indicated that the Veteran disagreed with the findings from the April 2012 VA examination. However, he stated that the April 2012 VA examination correctly observed that there were no visible residuals of Kaposi's sarcoma on the skin of the Veteran's foot. An April 2014 VA infectious disease record noted an impression of Kaposi's sarcoma with no active disease responsive to HIV therapy. In a May 2014 VA dermatology note, the Veteran denied noticing a recurrence of Kaposi's sarcoma. The VA physician noted an assessment of a history of Kaposi's sarcoma in the setting of HIV. He also noted that the Veteran should continue to be monitored for recurrence and follow-up with his infectious disease physicians for continued antiretroviral treatment. A September 2015 VA admission record noted that the Veteran's skin was without concerning lesions. It was also noted that the Veteran's history of Kaposi's sarcoma had resolved. An October 2015 VA podiatry record noted an isolated hyperkeratotic lesion on the plantar aspect of the fifth metatarsal head of the Veteran's feet, bilaterally. During the November 2016 hearing, the Veteran testified that he had lesions on his right foot and other areas of his body that appeared similar to his symptoms in 2012. He also testified that he had several lesions removed since the April 2012 VA examination. In addition, the Veteran contended that a biopsy was necessary to determine whether his Kaposi's sarcoma was in remission. He further testified that his VA physicians informed him that his Kaposi's sarcoma was permanent in nature, remained active, and would be fatal without antiretroviral treatment. In light of the foregoing, the Board finds that a remand is necessary to obtain a VA medical opinion to address the Veteran's contentions regarding the active and permanent nature of his Kaposi's sarcoma. In addition, as discussed above, the Veteran's VA medical records reflect that he has received ongoing treatment with antiretroviral medication since the April 2012 VA examination. The Veteran also testified that he has current lesions and that he had several lesions removed since the April 2012 VA examination. Therefore, a VA examination and medical opinion are necessary to address whether the Veteran's Kaposi's sarcoma has been an active disease or whether there was a treatment phase since April 2012. In addition, during the November 2016 hearing, the Veteran testified that he received recent treatment at the Portland VA Medical Center (VAMC) for a lesion on his right foot. The Board also notes that the VA medical records associated with the claims file dated from December 2008 to March 2013 appear very limited. Therefore, the AOJ should obtain any outstanding VA medical records. Lastly, the April 2012 VA examination noted that the Veteran receives Supplemental Security Income (SSI) benefits. It is unclear whether these records may be relevant to the claim on appeal. Therefore, the AOJ should attempt to obtain any available records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for Kaposi's sarcoma. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any VA medical records dated from December 2008 to March 2013, and any records from the Portland VAMC dated from December 2015 to the present. 2. The AOJ should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected Kaposi's sarcoma. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should specifically determine whether a biopsy is needed, and if so, one should be performed. If a biopsy is not necessary, the examiner should explain in the report. See November 2016 hearing transcript. The examiner is requested to review all pertinent records associated with the claims file, including any treatment records and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected Kaposi's sarcoma under the rating criteria. In particular, he or she should indicate whether the Veteran's Kaposi's sarcoma is in an active disease or in an active treatment phase. The examiner should also indicate whether there has been any local recurrence or metastasis. He or she should further identify any symptomatology or manifestations attributable to the service-connected Kaposi's sarcoma. In so doing, he or she should address the Veteran's contentions regarding his symptoms of pain and cognitive impairment. See e.g. April 2012 VA examination. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claim file, must be made available to the examiner for review. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).