Citation Nr: 1806567 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-10 598A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable rating, as of May 28, 2013, for non-Hodgkin's lymphoma. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1959 to January 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 12, 2013 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, additional development is needed prior to further disposition of the Veteran's claim. Prior to certification to the Board, in August 2013 the Veteran submitted VA Form 21-4142 authorizing VA to obtain private treatment records from Dr. F. and Dr. L. at Mary Bird Perkins Cancer Center. Further, a review of the record shows a December 2013 VA medical record noting the Veteran saw hematologist Dr. V for his polycythemia. Additionally, a December 2014 VA medical record noted the Veteran was followed by Dr. F, a hematologist. The Board notes that the Veteran's service-connected non-Hodgkin's lymphoma is currently rated by analogy under 38 C.F.R § 4.117, Diagnostic Codes (DCs) 7715-7700. DC 7715 directs the rater, if there has been no local recurrence or metastasis, to rate on residuals. 38 C.F.R. § 4.117 (2017). Under DC 7700, a 0 percent rating is warranted for anemia when the hemoglobin level is 10gm/100ml or less and the condition is asymptomatic. A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted for a hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is warranted for a hemoglobin level of 7 gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). A 100 percent rating is warranted for a hemoglobin level of 5 gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling. A Note to DC 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, are to be rated separately. Id. As the criteria used to rate the service-connected non-Hodgkin's lymphoma is based on the Veteran's hematology, and in light of the missing evidence, the Board finds the record is inadequate to properly adjudicate the claim on appeal. Therefore, the Board finds that the missing treatment records must be obtained and associated with the claims file. 38 U.S.C. § 5103A (2012). The Board further notes that following certification to the Board, a December 2016 VA medical record shows the Veteran was currently being seen by hematologist Dr. C. for elevated white blood cells and polycythemia. During a recent December 2017 Board hearing, the Veteran affirmed that he was currently being seen by Dr. C who regularly checked his blood every three months and with whom he had personal appointments twice per year. Accordingly, efforts should be made to obtain such records identified by the Veteran. Id. Lastly, the record shows the Veteran underwent a VA examination in August 2013. The examiner noted a diagnosis for non-Hodgkin's lymphoma and polycythemia vera. Polycythemia was noted to be a blood clotting disorder and the examiner noted the condition was stable. The examiner also noted that the Veteran was diagnosed with Stage IeA Follicular cell B-cell lymphoma of the scalp in early 2006, and that he completed definitive radiation therapy in May 2006. Subsequent follow-ups, including CT imaging studies, were noted as negative for metastatic or recurrent disease. The Veteran was on continuous medication to control his hematologic or lymphatic condition which was noted as in remission. The Veteran reported symptoms including easy fatigability and stated he had no stamina since his original diagnosis. No recurring infections attributable to any condition or complications or residuals of treatment were found. Additionally, no other pertinent physical findings or complications were found. At a December 2017 Board hearing, the Veteran testified that his non-compensable rating did not incorporate all residual symptoms. Current residual symptoms reported included memory loss, cognitive defects, fatigue, loss of certain motor skills and bone deterioration of his teeth and jaw. As noted above, DC 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, are to be rated separately. 38 C.F.R. § 4.117 (2017). Given the Veteran's assertion of residual symptoms that were not reported or found during his last VA examination, and in consideration that the rating criteria directs the rater to rate on residuals, the Board finds that a new VA examination is necessary to properly adjudicate the issue on appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, with any necessary identification of sources by the Veteran, request all private treatment records from the Veteran not already associated with the file. All reasonable attempts should be made to obtain such records. 3. Then, schedule the Veteran for a VA examination to determine the current severity of his service-connected non-Hodgkin's lymphoma and/or residuals. The electronic claim file should be made accessible for review in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for rating under all alternate criteria. The examiner should specifically identify any and all residuals of the non-Hodgkin's lymphoma, and should specifically indicate whether the claimed memory loss, cognitive defects, fatigue, loss of certain motor skills and bone deterioration of his teeth and jaw are residuals of the non-Hodgkin's lymphoma. The examiner must provide a complete rationale for any opinion expressed. 4. Then, readjudicate the claim on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ Thomas H. O'Shay 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).