Citation Nr: 18155201 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 18-49 009 DATE: December 3, 2018 ORDER A separate 10 percent rating for intermittent fatigue associated with hemochromatosis under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7345 is granted from April 9, 2012 to May 23, 2018, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to increased ratings for hemochromatosis, to include ratings higher than 10 percent under DC 7345 (for fatigue, in effect from April 9, 2012 to May 23, 2018) and higher than 40 percent for the underlying disability under 38 C.F.R. § 4.117, DC 7704, is remanded. Entitlement to an effective date prior to April 9, 2012 for service connection for hemochromatosis is remanded. FINDING OF FACT The evidence, including a January 2013 VA treatment record where the Veteran reported weakness after his regular phlebotomy treatments and a June 2018 letter from the Veteran’s attorney noting that the Veteran feels fatigued after phlebotomy, reasonably shows that the Veteran’s hemochromatosis has been associated with intermittent fatigue. Because this symptom is not specifically contemplated by DC 7704, the Board of Veterans’ Appeals (Board) finds that a separate 10 percent rating is warranted for intermittent fatigue associated with hemochromatosis under DC 7345. Resolving reasonable doubt in the Veteran’s favor, the Board finds that this rating is warranted from the date of service connection until May 23, 2018, when a 100 percent rating was assigned for liver cancer (which, as noted on the July 2018 VA liver examination report, encompasses daily fatigue symptoms). CONCLUSION OF LAW The criteria have been met for a separate rating of 10 percent for intermittent fatigue associated with hemochromatosis under DC 7345 from April 9, 2012 to May 23, 2018. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.114, DC 7345; See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1956 to December 1957. These matters are before the Board on appeal from a November 2017 rating decision, which implemented the Board’s March 2017 grant of service connection for hemochromatosis and assigned an initial noncompensable rating. In a September 2018 rating decision, the RO changed the disability code under which the Veteran’s hemochromatosis is rated from 7122 (cold injury residuals) to 7704 (polycythemia vera) and assigned an increased rating of 40 percent effective from the date of service connection. Because this increase does not represent a total grant of the benefits sought on appeal, the claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board also finds that the issue of entitlement to service connection for additional potential cold injury residuals including joint pain and osteoarthritis (aside from the issue of whether these are manifestations of hemochromatosis which is addressed here) has been raised by the record by the July 2013 VA examination report. This issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b). The Board notes that this case was advanced on the docket due to the Veteran’s serious illness. In an October 2017 letter, the Veteran’s attorney advised the RO that the Veteran could not attend VA examinations to due to his terminal illness and requested that the RO rate the Veteran’s disabilities based on the medical evidence of record. The Board has likewise referred to the copious medical evidence and the Veteran’s statements, which were closely reviewed and appreciated, in assigning the additional 10 percent disability rating. The Board also takes this opportunity to express gratitude to the Veteran for his honorable service. Finally, the Board notes that the November 2017 rating decision on appeal also assigned disability ratings for the Veteran’s bilateral hip disability. The Veteran did not file a notice of disagreement (NOD) for this this issue; accordingly, this issue is not on appeal and will not be addressed further here. Increased Rating As outlined above, a separate 10 percent rating for intermittent fatigue associated with the Veteran’s hemochromatosis is warranted under DC 7345 which assigns a 10 percent rating for intermittent fatigue associated with liver diseases, including hemochromatosis. 38 C.F.R. § 4.114, DC 7345. As to a still higher rating under DC 7345, unfortunately the Board is unable to determine whether this is warranted based on the evidence of record because it is necessary to distinguish which of the Veteran’s symptoms, including weight loss, anorexia, nausea, daily fatigue, and incapacitating episodes, are related to liver cancer (which was not service connected until May 2018) and which may be fairly attributed to hemochromatosis (which has been service connected since April 2012). The Board notes that the Veteran is also in receipt of a 40 percent rating under DC 7704 in recognition of the frequent phlebotomies required by his hemochromatosis. 38 C.F.R. § 4.117, DC 7704. Here, the Board notes that disabilities specifically listed in the Schedule, as is hemochromatosis, should be rated under the pertinent DC. See Copeland v McDonald, 27 Vet. App. 333 (2015) (quoting Suttman v. Brown, 5 Vet. App. 127, 134 (1993)); 38 C.F.R. § 4.114, DC 7345. However, the Board will not disturb the favorable 40 percent rating assigned by the RO under DC 7704, which was specifically requested by the Veteran’s attorney in a June 2018 letter. However, again a remand is necessary to determine whether the Veteran is entitled to a yet higher rating under this DC because the evidence does not address whether the Veteran is receiving myelosuppression or another equivalent treatment for his hemochromatosis (required for the next highest rating under DC 7704). The Board also acknowledges the Veteran’s attorney’s June 2018 assertion that the Veteran is entitled to an additional 10 percent rating under DC 7122, the DC for cold injury residuals. Specifically, the attorney contends that the Veteran should receive a 10 percent rating for diagnosed osteoarthritis and arthralgia in his hands, feet, and other joints. As noted in the introduction, the Board finds that the issue of service connection for these symptoms as distinct disabilities is not before the Board; the Board has accordingly referred this issue to the AOJ for appropriate action. However, the remand section below addresses development required to determine whether these symptoms are manifestations of hemochromatosis and could be incorporated into the rating assigned in this case. In summary, the Board is granting a separate 10 percent rating for intermittent fatigue under DC 7345 and remanding the issue of increased ratings higher than 10 percent under DC 7345 and higher than 40 percent under DC 7704 for additional development as described below. REASONS FOR REMAND Entitlement to increased initial ratings (under DC 7345 and DC 7704) for hemochromatosis is remanded. A remand is necessary to obtain a medical opinion to ensure all the Veteran’s hemochromatosis symptoms are encompassed by the assigned ratings under DC 7345, DC 7704, or 38 C.F.R. § 4.104, DC 7122. The examiner should also consider whether the joint pain and associated ostearthritis and arthralgia noted in the July 2013 VA examination report and in the Veteran’s attorney’s June 2018 letter are manifestations of the Veteran’s service-connected hemochromatosis. Entitlement to an earlier effective date for service connection hemochromatosis is remanded. In his January 2018 notice of disagreement (NOD), the Veteran appealed the assigned effective date for service connection for hemochromatosis. In a September 2018 email, the Veteran’s attorney stated, “we will withdraw the appeal for an earlier effective date.” (emphasis added). The RO did not include this issue in the September 2018 statement of the case (SOC). In the October 2018 VA Form 9 (substantive appeal), the Veteran again disagreed with the assigned effective date for hemochromatosis. Because the Board finds that the September 2018 email, especially the word, “will,” is not a clear and unambiguous withdrawal, a remand is necessary for the RO to issue an SOC. See DeLisio v. Shinseki, 25 Vet. App. 45, (2011) (holding that withdrawal of a claim for VA disability benefits is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant); see also Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). If the Veteran wishes to withdraw this issue, he or his attorney may do so in writing with the RO. The matter is REMANDED for the following action: 1. The record indicates that the Veteran is gravely ill; accordingly, the Board directs the RO to please accomplish the development described below as efficiently as possible so that every consideration as to the availability of higher ratings may be offered during the Veteran’s lifetime. 2. Associated any updated VA treatment records (October 2018 to present) with the claims file. 3. Obtain a medical opinion from a VA liver conditions examiner, ideally from the July 2018 VA examiner, responding to the following: a. Please review the medical records from April 2012 to present and identify all symptoms reasonably associated with associated with the Veteran’s hemochromatosis during this time. b. The examiner must provide all information required for rating under DC 7345, including whether the hemochromatosis is associated with daily fatigue, malaise, anorexia, weight loss, hepatomegaly, or incapacitating episodes. c. Has the Veteran’s hemochromatosis has been treated, at any time, withy myelosuppression or any treatment equivalent to myelosuppression? d. Is it at least as likely as not (a 50 percent or greater probability) that any of the specific joint pain conditions (bilateral hand arthritis, bilateral foot arthritis and osteoporosis, and knee and shoulder pain) OR “joint pain” in general, as described in the July 2013 VA examination report and in the attorney’s June 2018 letter, are manifestations of hemochromatosis? A detailed explanation (rationale) is requested for all opinions provided. 4. The AOJ should then review the file including the newly obtained evidence and ensure that all the Veteran’s hemochromatosis symptoms are compensated. The RO should specifically consider DC 7345, DC 7122, and DC 7704, if appropriate, in assigning the most favorable rating possible. 5. Send the Veteran and his attorney an SOC that addresses the issue of entitlement to an earlier effective date for service connection for hemochromatosis. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration as appropriate. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel