Citation Nr: 18159711 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-37 704 DATE: December 19, 2018 ORDER A compensable rating for T-cell lymphoma is denied. A compensable rating for palmar keratosis is denied. A 10 percent evaluation based upon multiple, noncompensable service-connected disabilities is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. REMANDED Service connection for asthma is remanded. Service connection for bronchitis is remanded. Service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s T-cell lymphoma has been in remission, and thus without active disease; there has been no local recurrence or metastasis; and the Veteran has not had any current residual disabilities. 2. Throughout the appeal period, the Veteran’s palmar keratosis has not caused localized or episodic cutaneous involvement or lesions; has not required the use of systemic medication or topical therapy; and has not resulted in characteristic lesions. 3. The Veteran’s service-connected disabilities have not been of such character as to clearly interfere with normal employability. 4. The Veteran’s service-connected disabilities have not been shown to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for T-cell lymphoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.117, Diagnostic Code (Code) 7715. 2. The criteria for a compensable rating for palmar keratosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.118, Code 7824, General Formula Rating Formula for the Skin. 3. The criteria for entitlement to a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.324. 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 7, 1948, to December 6, 1957, and from December 9, 1957, to December 31, 1968, with service in Vietnam. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018 correspondence, the Veteran waived his right to a hearing on these issues. A February 2018 rating decision also denied the Veteran’s claim for TDIU, to which the Veteran subsequently filed a notice of disagreement. However, as his TDIU claim is part and parcel of his increased rating claims for T-cell lymphoma and palmar keratosis, his TDIU claim is properly before the Board at this time. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Mayhue v. Shinseki, 24 Vet. App. 273 (2011). Increased Rating The Veteran claims entitlement to compensable ratings for T-cell lymphoma and palmar keratosis, as well as a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities and TDIU. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury as long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). But where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, in those cases, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a compensable evaluation of T-cell lymphoma. In this case, the Veteran’s service-connected T-cell lymphoma is currently evaluated under Code 7715, which provides the criteria for evaluation of non-Hodgkin’s lymphoma. Under Code 7715, non-Hodgkin’s lymphoma with active disease or during a treatment phase warrants a 100 percent evaluation. 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 are 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 residual disabilities. 38 C.F.R. § 4.117, Code 7715, Note. The Veteran’s treatment records do not show any discernible complaints of symptoms or treatment related to his T-cell lymphoma during the relevant period (i.e., since September 18, 2012, one year prior to his increased rating claim). On February 2014 VA examination, the examiner noted that the Veteran’s T-cell lymphoma was in remission, that he was not currently undergoing any treatment for the condition, and that he did not currently have any conditions, complications, residuals, pertinent physical findings, or signs or symptoms related to his T-cell lymphoma. See February 2014 Hematologic and Lymphatic Conditions, including Disability Benefits Questionnaire (DBQ). There is no competent medical evidence to the contrary in the Veteran’s claims file. Although he claims entitlement to an increased evaluation for his service-connected T-cell lymphoma, the Veteran himself has not cited to any specific symptomatology upon which he bases that claim. To the extent that he claims, implicitly or explicitly, that he experiences certain symptoms in connection with this condition, the Board finds him competent to report symptoms but not competent to opine as to whether they are attributable to his T-cell lymphoma. That issue is medically complex and requires certain medical training and credentials which the Veteran has not shown that he possesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Again, the Board emphasizes that the Veteran hs not cited to any specific complaints related to his service-connected T-cell lymphoma that would warrant an increased rating. In light of the foregoing, the Board finds that a compensable rating is not warranted for any period on appeal as there is no medical or lay evidence of symptoms that would warrant a higher rating. Instead, the evidence shows that the Veteran’s T-cell lymphoma has been in remission, and thus without active disease; that there has been no local recurrence or metastasis; and that he does not have (and has not had during the relevant appeal period) any residual disabilities. Therefore, the criteria for a compensable rating for the Veteran’s service-connected T-cell lymphoma have not been met and the claim is denied. The Board notes that the Veteran has argued that VA failed to consider all of his medical evidence in deciding this claim. However, as discussed above, the relevant appeal period for this specific claim is one year prior to the Veteran’s increased rating claim, i.e., September 18, 2012, which is one year prior to his September 18, 2013, increased rating claim. Thus, any medical evidence prior to this appeal period are not relevant to his increased rating claim. 2. Entitlement to a compensable rating for palmar keratosis. The Veteran’s palmar keratosis is currently evaluated as noncompensable under 38 C.F.R. § 4.118, Code 7899-7824. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded, first with the numbers of the most closely related body part and then “99.” In this case, the hyphenated code indicates the disability is rated by analogy to Code 7824, for diseases of keratinization (including ichthyoses, Darier’s disease, and palmoplantar keratoderma). In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to 38 C.F.R. § 4.118, Code 7824. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the pre-August 2018 rating criteria, Code 7824 provided for a 0 percent rating when no more than topical therapy is required during the past 12-month period. A 10 percent rating is assigned with localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned with either generalized cutaneous involvement or systemic manifestations, and; intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted with either generalized cutaneous involvement or systemic manifestations, and; constant or near-constant systemic medication, such as immunosuppressive retinoids, required during the past 12-month period. 38 C.F.R. § 4.118, Code 7824. Beginning on and after August 13, 2018, a noncompensable rating is appropriate for a disease of keratinization if no more than topical therapy has been required over the past 12-month period and at least one of the following apply: characteristic lesions involving less than five percent of the entire body affected; or characteristic lesions involving less than five percent of exposed areas affected. A 10 percent rating is warranted if at least one of the following apply: characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected or of the exposed areas affected; or intermittent systemic therapy including, but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than six weeks over the past 12-month period. 38 C.F.R. § 4.118, GFS. Turning to the merits of the claim, the Veteran’s treatment records do not show any discernible complaints of symptoms or treatment related to his palmar keratosis during the relevant period (i.e., since September 18, 2013, the date service connection was granted). Additionally, the February 2014 VA skin diseases DBQ examiner did not note any pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran’s palmar keratosis, aside from hyperkeratosis of his bilateral palms. (The examiner actually noted a “[v]ague history of hyperkeratosis of both hands[.]”) See February 2014 VA Skin Diseases DBQ. The examiner also noted that the Veteran did not take any oral or topical medications and that there were no debilitating or non-debilitating episodes during the past 12 months for his skin disability. Although he claims entitlement to an increased evaluation for his service-connected palmar keratosis, the Veteran himself has not cited to any specific symptomatology upon which he bases that claim. Again, to the extent that he claims, implicitly or explicitly, that he experiences certain symptoms in connection with this condition, the Board finds him competent to report symptoms but not competent to opine as to whether they are attributable to his palmar keratosis. That issue is medically complex and requires certain medical training and credentials which the Veteran has not shown that he possesses. See Jandreau, 492 F.3d at 1377. Again, the Board emphasizes that the Veteran has not cited to any specific complaints related to his service-connected palmar keratosis that would warrant an increased rating. In light of the foregoing, the Board finds that a compensable rating is not warranted for any period on appeal as there is no medical or lay evidence of symptoms that would warrant a higher rating. Instead, the evidence shows that the Veteran’s palmar keratosis has not caused localized or episodic cutaneous involvement or lesions or resulted in the requirement of systemic medication or other therapy under Code 7824 in effect prior to August 13, 2018. Additionally, there is no evidence that the Veteran is due a compensable rating under the regulations in effect on August 13, 2018, as there is no indication of characteristic lesions involving at least five percent, but less than 20 percent or the entire body or of the exposed areas affected or intermittent systemic therapy. Although bilateral hyperkeratosis of the bilateral palms, was noted, there is no indication in any medical record that this condition, by itself, meets the criteria for a compensable rating under Code 7824, as set forth above. See 38 C.F.R. § 4.118, Code 7824, GFS. Therefore, the preponderance of the evidence weighs against finding that the Veteran is entitled to an increased evaluation of his service-connected palmar keratosis and the claim is denied. The Board notes that the Veteran has argued that VA failed to consider all of his medical evidence in deciding this claim. However, as discussed above, the relevant appeal period for this specific claim is the date that service connection was granted, i.e., September 18, 2013. Thus, any medical evidence prior to this appeal period are not relevant to his increased rating claim. 3. Entitlement to a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities. When a veteran suffers from two or more separate, permanent service-connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. In this case, service connection is only in effect for T-cell lymphoma and palmar keratosis discussed above, each of which have been rated as noncompensable, effective January 22, 2011, and September 18, 2013, respectively. As service connection was only in effect for one disability prior to September 28, 2013, as a matter of law, the Veteran would not be entitled to a 10 percent prior to that date. See 38 C.F.R. § 3.324. The Veteran claims entitlement to a 10 percent rating under 38 C.F.R. § 3.324 based, apparently, on his claim that he is totally disabled as a result of his T-cell lymphoma. See, e.g., November 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability and September 2018 VA Form 21-0958, Notice of Disagreement (NOD). In support of his claim, he submitted a November 1990 VA treatment record in which his treating physician discussed the Veteran’s lesions and concluded that he was totally disabled. See VA treatment note received in September 2018. As indicated above, however, the Veteran’s VA treatment records do not evidence any complaints by, or treatment of, the Veteran in relation to either condition since September 18, 2013. During his February 2014 VA examinations, the VA examiner opined that neither of those disabilities impact his ability to work. There is no competent evidence to the contrary – at least as related to the period since September 18, 2013 – in the Veteran’s claims file. Having reviewed the Veteran’s record, the Board finds that the preponderance of the competent evidence of record is against a finding that his service-connected disabilities are of such character as to interfere with normal employability. The Veteran’s VA treatment records examinations do not evidence any T-cell lymphoma-related symptoms or treatment since September 18, 2013, much less any such symptoms or treatment which indicate his disabilities clearly interfere with his employability. While the examiner noted that the Veteran has a “vague history” of hyperkeratosis of his bilateral palms, there is no indication in the record that it interferes with his employability. While the November 1990 VA treatment notes that the Veteran may very well have been totally disabled at that time, there is no competent evidence that the Veteran’s disabilities clearly interfere with normal employability since September 18, 2013. For these reasons, the Board finds that the Veteran is not entitled to a 10 percent rating under 38 C.F.R. § 3.324 and his claim is denied. 4. Entitlement to TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of a service-connected disability or disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether a veteran is unemployed or has difficulty obtaining employment, but whether a veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these rating requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). At no time has the Veteran’s disability ratings met the requirements for a schedular TDIU, as they are each rated noncompensable. See 38 C.F.R. § 4.16(a). However, as also indicated above, he may still be entitled to referral for consideration of an extraschedular grant of TDIU if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of his service-disabilities. 38 C.F.R. § 4.16(b). As discussed above, the preponderance of the competent evidence of record is against a finding that the Veteran’s service-connected disabilities, even when considered together, have interfered with his employability. Specifically, on February 2014 VA skin diseases and hematologic examinations, the examiner determined that the Veteran’s palmar keratosis and T-cell lymphoma do not impact his ability to work. Additionally, the evidence shows that the Veteran’s service-connected T-cell lymphoma has been in remission and essentially asymptomatic since September 18, 2012, and that his palmar keratosis does not require any treatment or result in debilitating or non-debilitating episodes. None of the examination reports or treatment records support a finding that the Veteran was unable to maintain substantially gainful employment due to his service-connected disabilities. The Board therefore finds that the Veteran’s disability picture does not warrant referral to Director or Undersecretary for Benefits for an opinion as to whether the Veteran’s service-connected disabilities preclude substantially gainful employment. This is so as the evidence of record does not support a finding that he was unable to maintain substantially gainful employment due to his service-connected T-cell lymphoma and/or palmar keratosis, which are his only service connected disabilities. While his disabilities may have had a mild effect on his functional limitations that would enable him to work in the past, the overall medical and lay evidence of record does not support a finding that the Veteran was precluded from gainful employment for which he is qualified due to his service-connected disabilities at any time during the relevant appeal period. Therefore, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran has been precluded from securing or following a substantially gainful occupation as a result of his service-connected disabilities. Accordingly, he is not entitled to TDIU, and his claim therefore is denied. See 38 C.F.R. § 4.16(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Service connection for asthma, bronchitis, and COPD is remanded. As an initial matter, VA was notified in July 2016 that part of the Veteran’s STRs were destroyed by fire. While a large portion of his STRs were obtained, the Veteran was never advised that part of his STRs were unavailable. Because his STRs are unavailable, VA has a well-established heightened duty to assist. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). This includes notifying the Veteran of all unavailable records and giving him the opportunity to submit copies of any STRs in his possession. The Board notes that the Veteran is not currently diagnosed with bronchitis. In the absence of proof of a current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the record suggests that the medical evidence associated with the record is incomplete. In January 2018 correspondence, the Veteran stated that Dr. Jeffrey Shea is his pulmonary physician and that he was treated at Good Shepherd Medical Center for pneumonia. To date, such records have not been obtained. Because private treatment records are likely to contain pertinent, they must be obtained. The Board notes for the Veteran that the February 2014 positive VA opinion in the file is unaccompanied with rationale and therefore lacks probative value. The record also contains an April 2014 VA negative opinion, which notes that there is no medical record evidence to indicate that the Veteran’s current asthma/COPD is related to service, to include as due to exposure to herbicide agents during service. As these claims are being remanded anyway, the Veteran will have an additional opportunity to submit evidence or information in support of his claim, to include any private medical opinions (supported by adequate rationale). The matters are REMANDED for the following action: 1. The AOJ should also contact the Veteran and advise him that part of his STRs are unavailable, and ask him to submit any of these records in his possession. (Continued on the next page)   2. Ask the Veteran to identify the provider(s) of all evaluations and treatment he received for his respiratory disabilities, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure the complete clinical records of such treatment or evaluation. The Veteran should specifically be requested to provide medical releases for Dr. Jeffrey Shea and Good Shepherd Medical Center. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. T. MATTA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel