Citation Nr: 18154352 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-28 288 DATE: November 29, 2018 ORDER An initial disability rating in excess of 10 percent for non-Hodgkin’s lymphoma (NHL) (exclusive of the period from December 4, 2012, until August 31, 2013, during which time a total, 100 percent rating was in effect) is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for an acquired psychiatric disorder to include anxiety (claimed as posttraumatic stress disorder) is remanded. Service-connection for essential tremors is remanded. FINDING OF FACT The Veteran’s non-Hodgkin’s lymphoma has been manifested by no more than mild pain and a sensory deficit in the left lower extremity throughout the appeal period. CONCLUSION OF LAW The criteria for assignment of an initial disability rating in excess of 10 percent for non-Hodgkin’s lymphoma (NHL) (exclusive of the period from December 4, 2012, until August 31, 2013, during which time a total, 100 percent rating was in effect) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.117, 4.124a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1967 to June 1970. This matter is on appeal from a May 2014 rating decision. As it pertains to hearing loss, the psychiatric disorder, and tremors, the issues were initial denied in a September 2013 rating decision. The RO issued the May 2014 rating decision readjudicating the issues after receiving additional, relevant evidence. Therefore, they remain original claims. See 38 C.F.R. § 3.156(b). The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in September 2016. A transcript of the hearing has been associated with the claims file. In September 2018, the Veteran filed a waiver of RO review for newly submitted evidence. 1. An initial disability rating in excess of 10 percent for non-Hodgkin’s lymphoma (NHL) (exclusive of the period from December 4, 2012, until August 31, 2013, during which time a total, 100 percent rating was in effect) The Veteran is seeking a higher initial rating for residuals of his NHL. The appeal period now before the Board begins in December 2012, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability was assigned a 100 percent rating from December 4, 2012, until August 31, 2013. A 10 percent rating has been in effect since that time. The Veteran is separately service-connected for two scars of the left foot. Those disabilities are not included in the scope of this appeal. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s disability has been assigned a disability rating under Diagnostic Code (DC) 7715-8521 of 38 C.F.R. § 4.117. The hyphenated code signals that the rating has been assigned under DC 8521 on the basis of residual conditions with the basic disease listed in DC 7715. See 38 C.F.R. § 4.27. The applicable rating schedule is set forth as follows:   7715 Non-Hodgkin’s lymphoma: With active disease or during a treatment phase 100 Note: The 100 percent 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 VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. External popliteal nerve (common peroneal) 8521 Paralysis of: Complete; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes 40 Incomplete: Severe 30 Moderate 20 Mild 10 8621 Neuritis. 8721 Neuralgia. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120; see also 38 C.F.R. § 4.123, 124. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Introductory Note. B. Discussion In this case, the question for the Board is whether the Veteran’s disability has been manifested by no more than mild impairment under DC 8521. The Board finds that this next-higher disability level is not more nearly approximated. At a June 2013 VA examination, the Veteran reported symptoms of paresthesia. During private treatment in November 2013, the Veteran reported left foot pain that came and went, but could reach a level 10 at times. He still went to the gym for one hour four times per week. On follow-up in February 2014, the Veteran reported less intermittent throbbing pain, still tender, but he could walk. Again, in May 2014, he could walk with minimal discomfort, but not far. In August 2014 and again in December 2014, he complained of tenderness and an occasional cramp at night. By May 2015, it was noted that he could walk for 2 miles. In September 2014 and October 2015, he was noted to have chronic foot paresthesias. At private psychiatric treatment in October 2014, he complained of an occasional shock-like pain in his toe due to radiation treatment. At his September 2016 Board hearing, the Veteran described “stabbing” pains for 14 months after his chemotherapy. Board Hr’g Tr. 3. He could not walk, and the pain kept him from sleeping at night. Id. He explained that he was currently “having it not as bad,” but still felt “shocking pains every now and again.” Board Hr’g Tr. 5. His private oncologist wrote a letter in May 2018 explaining that the Veteran still had chronic mild left medial foot intermittent tenderness with pressure and intermittent left foot cramp most likely due to scar tissue from chemotherapy. Most recently, he underwent a VA examination in July 2018. At that time, the Veteran had complaints of left foot pain associated with tingling and numbness since radiation treatment. The examiner found him to have severe numbness, but full strength. Deep tendon reflexes were 1+ (defined in the examination report as “hypoactive”). Sensory examination was decreased, and there were positive Phalen’s and Tinel’s tests. The VA examiner diagnosed mild incomplete paralysis of the musculocutaneous (superficial peroneal) nerve, internal popliteal (tibial) nerve, and posterior tibial nerve. The functional impact was difficulty standing or walking for a prolonged period of time. This evidence indicates that the Veteran’s disability involved pain and a sensory deficit. Although by the time of the July 2018 VA examination he had hypoactive deep tendon reflexes, he had a mild functional impact. He earlier explained at the Board hearing that his disability level was “not as bad.” Prior to that time, notwithstanding his complaints of significant pain, the pain was intermittent as indicated in November 2013, and he was still able to go to the gym four times per week. Then, by February 2014, it was less intermittent, albeit still tender. Such evidence tends to indicate a mild disability picture. As such, a higher rating is not warranted. Although the July 2018 VA examiner indicated involvement of multiple nerves, the Veteran’s symptoms are not distinct and separate based on the separate nerves. Thus, the current 10 percent rating contemplates the complete disability picture for all nerve involvements. Thus, a higher rating under DC 8521 is not warranted. There is otherwise no indication of compensable residuals of the service-connected NHL. The June 2013 VA examiner specifically found that there were no residuals other than left foot paresthesia. For this reason, the appeal is denied. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. This issue is remanded to obtain missing medical records and a new VA examination. Regarding the medical records, the Veteran reported during private (non-VA) treatment in February 1997 that he was followed through his job for hearing loss. More recently, at his Board hearing, he explained that had had yearly evaluations after service for his job as a firefighter. Board Hr’g Tr. 25. Because those records are potentially relevant, the Veteran should be given the opportunity to obtain them for review or request VA to obtain them on his behalf. See 38 C.F.R. § 3.159(c)(e)(2). The Board also finds that a new VA examination is needed once the private medical records are obtained. The Veteran previously underwent a VA examination in June 2013. The VA examiner gave a negative opinion, but a very limited rationale indicating that the service treatment records (STRs) contained a single audiogram conducted in February 1970 (a separation physical examination), which, according to the examiner, indicated normal hearing sensitivity bilaterally for frequencies 500 Hz through 4k Hz. The Board notes that the VA examiner’s rationale is based on an incomplete factual foundation. First, the available STRs include a pre-induction examination from May 1967. This examination is archived in a folder labeled as personnel records, which may be why the examiner did not identify it. In either event, the examiner’s opinion was also not based on the ongoing workplace evaluations. As such, a remand is needed. 2. Service connection for an acquired psychiatric disorder to include anxiety (claimed as posttraumatic stress disorder) is remanded. This issue is remanded for a VA examination. The Veteran previously underwent VA examinations in June 2013 and June 2015. The VA examiners gave negative opinions as to whether a current diagnosis was related to service. However, they did not address a reasonably raised contention that the Veteran’s psychiatric diagnosis may secondary to his service-connected NHL. As such a new VA examination is needed. 3. Service-connection for essential tremors is remanded. This issue is remanded for a VA examination. At his Board hearing, the Veteran testified that he had been “shaking” since Vietnam. Board Hr’g Tr. 27. There is also a question as to whether tremors may be secondary to a service-connected disability. The Board cannot make a fully-informed decision on the issue because no VA examiner has opined on either theory of entitlement. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for his annual workplace medical evaluations as a firefighter. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Next, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of hearing loss. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including noise exposure during service. In doing so, the examiner is asked to consider the pre-induction examination and the post-service workplace evaluations (if obtained). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his psychiatric diagnosis. For each psychiatric diagnosis, the examiner must address the following: Whether it is at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. 4. After completing the development in directive 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his tremors. For each diagnosis, the examiner must address the following: (a.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including combat in Vietnam. (Continued on the next page)   (b.) Whether the diagnosis is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel