Citation Nr: 20021596 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-06 893 DATE: March 26, 2020 ORDER Entitlement to a compensable schedular evaluation for residuals of hairy cell leukemia is denied. REMANDED Entitlement to a compensable evaluation for residuals of hairy cell leukemia on an extraschedular basis is remanded. FINDING OF FACT Hairy cell leukemia is in remission; anemia with hemoglobin measured at 10gm/100ml or less and aplastic anemia requiring continuous medication for control has not been shown. CONCLUSION OF LAW The criteria for a compensable schedular rating for residuals of hairy cell leukemia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.117, Diagnostic Code 7703-7716 (2019).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1955 to October 1957. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in March 2018 when it was remanded for further development. Increased Rating In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate “staged” ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran is seeking a compensable rating for residuals of hairy cell leukemia. VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the hematologic and lymphatic systems. The effective date of the rule is December 9, 2018. The final rule updated medical terminology, added certain hematologic diseases, and provided detailed and updated criteria for evaluating conditions pertaining to the hematologic and lymphatic systems. In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). In a December 2012 rating decision, the Veteran’s disability rating was reduced from 100 percent to 0 percent (noncompensable) effective March 1, 2013, based on findings from an April 2012 VA examination which showed that his leukemia was in remission. Under the criteria effective prior to December 9, 2018, 38 C.F.R. § 4.117, Diagnostic Code 7703 (leukemia) provided that a 100 percent rating is warranted with active disease or during the treatment phrase. Otherwise, the adjudicator is to rate the disability as anemia (Diagnostic Code 7700) or aplastic anemia (Diagnostic Code 7716), whichever would result in the greater benefit. Under Diagnostic Code 7700, 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 7gm/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 5gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117, Diagnostic Code 7700. Under Diagnostic Code 7716, aplastic anemia requiring continuous medication for control is rated 10 percent disabling. Anemia requiring transfusion of platelets or red cells, on average, at least once per 12-month period; or infections recurring, on average, at least once per 12-month period warrants a 30 percent rating. Anemia requiring transfusion of platelets or red cells, on average, at least once every three months per 12-month period; or infections recurring, on average, at least once every three months per 12-month period; or using continuous therapy with immunosuppressive agent or newer platelet stimulating factors warrants a 60 percent rating, and anemia requiring peripheral blood or bone marrow stem cell transplant; or requiring transfusion of platelets or red cells, on average, at least once every six weeks per 12-month period; or infections recurring, on average, at least once every six weeks per 12-month period warrants a 100 percent rating. 38 C.F.R. § 4.117, Diagnostic Code 7716. Effective December 9, 2018, the revised Diagnostic Code 7703 provides that a 100 percent rating is warranted with active disease or during the treatment phrase. Chronic lymphocytic leukemia or monoclonal B-cell lymphocytosis (MBL), asymptomatic, Rai Stage 0 is rated as noncompensable. Note 1 to Diagnostic Code 7703 provides that a 100 percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, 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 recurrence, rate on residuals. Note 3 provides that residuals of leukemia or leukemia therapy is to be evaluated under the appropriate diagnostic code(s). Myeloproliferative Disorders: (Diagnostic Codes 7704, 7718, 7719). Under the revised Diagnostic Code 7704 for polycythemia vera, a 10 percent rating is warranted when the condition requires phlebotomy 3 or fewer times per 12-month period or if requiring biologic therapy or interferon on an intermittent basis as needed to maintain all blood values at reference range levels. A 30 percent rating is warranted when the condition requires phlebotomy 4 to 5 times per 12-month period, or if requiring continuous biologic therapy or myelosuppressive agents, to include interferon, to maintain platelets <200,000 or white blood cells (WBC) <12,000. Requiring phlebotomy 6 or more times per 12-month period or molecularly targeted therapy for the purpose of controlling RBC count warrants a 60 percent rating and requiring peripheral blood or bone marrow stem-cell transplant or chemotherapy (including myelosuppressants) for the purpose of ameliorating the symptom burden warrants a 100 rating. Under Diagnostic Code 7718 for essential thrombocytopenia and primary myelofibrosis, a noncompensable evaluation is warranted if the condition is asymptomatic. Requiring continuous or intermittent myelosuppressive therapy, or chemotherapy, or interferon treatment to maintain platelet count of 200,000–400,000, or white blood cell (WBC) count of 4,000–10,000 warrants a 30 percent rating. Requiring continuous or intermittent myelosuppressive therapy, or chemotherapy, or interferon treatment to maintain platelet count <500 × 10 9/L warrants a 70 percent rating. Requiring either continuous myelosuppressive therapy or, for six months following hospital admission, peripheral blood or bone marrow stem cell transplant, or chemotherapy, or interferon treatment warrants a 100 percent rating. Note 1 states that if the condition undergoes leukemic transformation, evaluate as leukemia under diagnostic code 7703. Note 2 states that a 100 percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant; or during the period of treatment with chemotherapy (including myelosuppressants). Six months following hospital discharge or, in the case of chemotherapy treatment, six months after completion of treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. Under Diagnostic Code 7719 for chronic myelogenous leukemia (CML) (chronic myeloid leukemia or chronic granulocytic leukemia), in apparent remission on continuous molecularly targeted therapy with tyrosine kinase inhibitors warrants a 30 percent rating. Requiring intermittent myelosuppressive therapy, or molecularly targeted therapy with tyrosine kinase inhibitors, or interferon treatment when not in apparent remission warrants a 60 percent rating and requiring peripheral blood or bone marrow stem cell transplant, or continuous myelosuppressive or immunosuppressive therapy treatment warrants a 100 percent rating. The rule also removed Diagnostic Code 7700 (Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) and added separate diagnostic codes (Diagnostic Codes 7720-7723) for the four major types of anemia that are neither hereditary nor secondary (addressed under the diagnostic code for the causative condition). Under Diagnostic Code 7720, iron deficiency anemia requiring intravenous iron infusions 4 or more times per 12-month period warrants a maximum 30 percent rating, while iron deficiency anemia requiring intravenous iron infusions at least 1 time but less than 4 times in a 12-month period, or requiring continuous treatment with oral supplementation provides a 10 percent rating. A noncompensable rating is provided for asymptomatic iron deficiency anemia or requiring treatment only by dietary modification. Under Diagnostic Code 7721, a folic acid deficiency requiring continuous treatment with high-dose oral supplementation warrants a maximum 10 percent rating. Under Diagnostic Code 7722 for pernicious anemia and Vitamin B12 deficiency anemia, continuous treatment with Vitamin B12 injections, Vitamin B12 sublingual or high-dose oral tablets, or Vitamin B12 nasal spray or gel warrants a 10 percent rating; and an initial diagnosis requiring transfusion due to severe anemia, or if there are signs or symptoms related to central nervous system impairment, such as encephalopathy, myelopathy, or severe peripheral neuropathy, requiring parenteral B12 therapy warrants a 100 percent rating. Under Diagnostic Code 7723, acquired hemolytic anemia requiring one course of immunosuppressive therapy per 12-month period provides a 10 percent rating; requiring at least 2 but less than 4 courses of immunosuppressive therapy per 12-month period warrants a 30 percent rating; requiring immunosuppressive medication 4 or more times per 12-month period warrants a 60 percent rating; and requiring a bone marrow transplant or continuous intravenous or immunosuppressive therapy warrants a 100 percent rating. 38 C.F.R. § 4.117. In an April 2013 statement, the Veteran indicated that he is easily fatigued, and his platelet counts are bordering the 100,000 mark. He also indicated that he has mild headaches three to four times a week. VA treatment records from March 2013 indicate a hemoglobin level of 16.1 gm and platelet count of 104. He was noted to be on surveillance and was clinically and symptomatically doing well, with no infections or bleeding problems. September 2013 records note the Veteran’s complaints of declining energy. He was on surveillance and his blood counts were stable. A December 2013 VA examination report indicates that the Veteran noted periodic diarrhea, one to two times a month. Continuous medication was not required for control of a hematologic or lymphatic condition. His leukemia was in remission, treatment was completed, and he was in watchful waiting status. He did not have anemia or thrombocytopenia. Laboratory testing showed hemoglobin at 15.5 gm and a platelet count of 103. The examiner indicated that his condition did not impact his ability to work, and that he was in a stable physical condition. VA treatment records from March 2014 note that the Veteran had no new complaints. Laboratory studies showed hemoglobin of 15.5 gm and platelet count of 109. There were no infections or bleeding problems. In September 2014, he complained of some joint aches in the back and neck when he worked too long or sat too long. Laboratory testing showed hemoglobin at 15.9 gm and a platelet count of 124. There were no infections or bleeding problems. The VA treatment provider indicated that the Veteran’s cancer would not be considered in remission and had continued problems with thrombocytopenia. It was indicated that the Veteran was on surveillance and was clinically and symptomatically doing well. In March 2015, it was noted that there were no new complaints. Laboratory testing showed hemoglobin at 15.8 gm and a platelet count of 113. There were no infections or bleeding problems. In September 2015, he was reported to be doing well and had no new complaints. Laboratory testing showed hemoglobin at 14.9 gm and a platelet count of 123. It was noted that the Veteran was on surveillance without clinical, symptomatic, or biochemical evidence of disease recurrence. There were no infections or bleeding problems. It was also noted that the Veteran would be monitored on a yearly basis. The Veteran underwent a VA examination in February 2016. The examiner noted that the Veteran’s hairy cell leukemia was in remission, and treatment was completed in 2010. There were no complications ot residuals requiring transfusion of platelets or red cells, no complications or residuals causing infections, and no complications or residuals related to anemia. The Veteran reported ongoing weakness, shortness of breath, lightheadedness with exertion, headaches, and easy fatigability. Laboratory testing showed hemoglobin at 14.9 gm and a platelet count of 123. There was no evidence of anemia. VA treatment records from September 2016 note the Veteran’s reports of doing well with no new complaints. Laboratory testing showed hemoglobin at 15.9 gm and a platelet count of 120. There were no infections or bleeding problems. The Veteran had no new complaints in September 2017. Laboratory testing showed hemoglobin at 15.8 gm and a platelet count of 128. There were no infections or bleeding problems. In September 2018, the Veteran continued to do well, had an itchy rash which moved around. Laboratory testing showed hemoglobin at 15.6 gm and a platelet count of 130. The Veteran underwent testing in July 2019, which showed hemoglobin at 15.0 gm and platelet count of 135. In September 2019, the Veteran offered no new complaints. There were no infections or bleeding problems. The Veteran underwent a VA examination in November 2019. The Veteran’s current symptoms were weakness, shortness of breath, lightheadedness with exertion, headaches, easy fatigue, weakened immune system, decreased platelet count, restricted activity, prolonged colds, and chest pain. Continuous medication was not required for control of a hematologic or lymphatic condition. Treatment was completed and he was in watchful waiting status. The Veteran did not have anemia, thrombocytopenia, polycythemia vera, or sickle cell anemia. He did have hairy cell leukemia and thrombocytopenia, which were in remission. The examiner noted May 2016 laboratory testing which showed hemoglobin at 14.7 gm and a platelet count of 102. His condition impacted his ability to work in that he bruised easily, had recurring headaches, chest pain, shortness of breath, and exertion caused fatigue. The Veteran retired early in the day due to poor functional tolerance and walking long distances was difficult. Based on a review of the record, the Board finds that a compensable schedular rating is not warranted. As noted, Diagnostic Code 7703 prior to the revised regulation directs that in the absence of active leukemia a condition should be rating under Diagnostic Code 7700 or 7716, whichever would result in the greater benefit. The evidence does not demonstrate that the Veteran’s leukemia is active. Although a September 2014 VA treatment provider indicated that the Veteran’s cancer would not be considered in remission and that he had continued problems with thrombocytopenia, this statement is inconsistent with and outweighed by the other medical evidence of record, which clearly indicates that the Veteran’s leukemia has been in remission. The revised Diagnostic Code 7703 directs that if there is no recurrence, it is to be rated on residuals. Looking at Diagnostic Code 7716, the Board finds that a compensable rating is not warranted. A review of the evidence of record does not show a diagnosis of aplastic anemia requiring continuous medication for control. The Veteran has also not alleged that he has aplastic anemia that requires continuous medication for control. Since his reduction of rating, no private or VA medical records have shown that he has aplastic anemia that requires medication. The evidence also shows that a compensable rating prior to December 9, 2018 under Diagnostic Code 7700 is not warranted. The Veteran has not been diagnosed with hypochromic-microcytic and megaloblastic anemia with hemoglobin 10 gm/100 ml (g/dL) or less. He has no diagnosis of anemia since the reduction in rating, and hemoglobin levels as shown in VA treatment records and VA examination reports have been consistently measured throughout the appeals period and at no point during this period were hemoglobin levels 10 gm/100 ml (g/dL) or less. The Veteran’s bloodwork showed hemoglobin levels to be no less than 14.7 gm/100 ml (g/dL). The Board acknowledges that the Veteran has described symptoms such as weakness, easy fatigability, headaches, lightheadedness, and shortness of breath, which are symptoms included in the 10 and 30 percent criteria under Diagnostic Code 7700. However, as there has been no evidence of hemoglobin findings meeting the 10 percent or 30 percent criteria, the evidence does not more nearly approximate evaluation under these criteria. The final rulemaking that implemented these criteria explained that evaluation of anemia was to be done with consideration of the “levels of hemoglobin in combination with clinical findings” and that such would allow a better assessment of the disability than either the hemoglobin levels alone or the clinical findings alone. 60 Fed. Reg. 49,225, 49,225-226 (Sept. 22, 1995). Therefore, as the Veteran has not had hemoglobin levels of 10 gm/100 ml or less, the existence of the clinical findings is insufficient to more nearly approximate the criteria for a compensable rating and the weight of the evidence is against a finding that a compensable rating under Diagnostic Code 7700 is warranted. The revised criteria effective December 9, 2018 for Diagnostic Codes 7720, 7721, 7722, and 7723 are not for application as there is no diagnosis of anemia since the reduction in rating, and there is no evidence that the Veteran requires intravenous iron infusions, high-dose oral supplementation, continuous B12 therapy, and immunosuppressive therapy. Also, Diagnostic Code 7704 for polycythemia vera and Diagnostic Code 7719 for CML do not provide for a compensable rating as the evidence does not show that the Veteran has been diagnosed with polycythemia vera or CML. While the record does reflect that the Veteran has been diagnosed with thrombocytopenia, Diagnostic Code 7705, which rates thrombocytopenia, provides that a noncompensable rating for a platelet count above 50,000 and asymptomatic; or for immune thrombocytopenia in remission; a 10 percent rating is warranted for a platelet count higher than 30,000 but not higher than 50,000, not requiring treatment; a 30 percent rating is warranted for a stable platelet count between 70,000 and 100,000, without bleeding; a 70 percent rating is warranted for a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding; and a 100 percent rating is warranted for a platelet count of less than 20,000, with active bleeding, requiring treatment with medication and transfusions. 38 C.F.R. § 4.117, Diagnostic Code 7705. Platelet counts throughout the period have been consistently 100,000 or higher and there is no evidence of active bleeding requiring medication and transfusions. A compensable rating is also not warranted under Diagnostic Code 7718. The November 2019 VA examination does not show any evidence that the Veteran requires continuous or intermittent myelosuppressive therapy, or chemotherapy, or interferon treatment to maintain platelet count of 200,000–400,000, or WBC count of 4,000–10,000. The Board finds no other appropriate diagnostic code which would provide for a compensable rating. Therefore, a compensable rating is not warranted. As the preponderance of the evidence is against assignment of an increased schedular rating in this matter, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Veteran has raised the issue of an increased rating on an extraschedular basis, which will be addressed in the remand portion of the decision below. REASONS FOR REMAND Increased Rating for Residuals of Hairy Cell Leukemia on an Extraschedular Basis Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service (Director), is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In this case, a February 2016 VA examiner stated that the Veteran had ongoing weakness, shortness of breath, lightheadedness with exertion, headaches, and easy fatigability. The November 2019 VA examiner indicated that the Veteran’s current condition impacted his ability to work in that he bruised easily, had recurring headaches, chest pain, shortness of breath, and exertion caused fatigue. Walking long distances was hard for the Veteran. The examiner also indicated that the Veteran could not work a long day and had to retire early in the day due to poor functional tolerance. As the old and new schedular criteria arguably do not adequately contemplate the Veteran’s disability picture and it may cause marked interference with employment, referral for consideration of an extraschedular evaluation is warranted.   The matters are REMANDED for the following action: Refer the claim of entitlement to a compensable evaluation for residuals of hairy cell leukemia on an extraschedular basis to the Director of Compensation Service for a determination as to whether the Veteran is entitled to assignment of an extraschedular rating. The rating board should include a full statement of all factors having a bearing on the issue. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.