Citation Nr: 20047523 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 20-02 560 DATE: July 16, 2020 ORDER An initial compensable disability rating for the service-connected hairy cell leukemia is denied. FINDING OF FACT Hairy cell leukemia is in remission; neither anemia with hemoglobin measured at 10gm/100ml or less nor aplastic anemia requiring continuous medication for control has been shown. CONCLUSION OF LAW The criteria for a compensable rating for the service-connected hairy cell leukemia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.117, Diagnostic Codes (DCs) 7700, 7703, 7716. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1962 to October 1966 and from September 1984 to December 1984. This appeal stems from a September 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating action, the RO granted the Veteran service connection for hairy cell leukemia, effective March 14, 2017, the effective date of the VA regulations pertaining to entitlement to service connection for adult leukemia on the basis of presumption due to exposure to contaminants in the water supply at Camp Lejeune. The Veteran was assigned a noncompensable rating and has appealed that rating. An initial compensable disability rating for the service-connected hairy cell leukemia 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 contends that he is entitled to a compensable rating for his service-connected hairy cell leukemia. Although the record indicates that the Veteran was diagnosed with hairy cell leukemia in June 2000, he has only been service-connected for this disability since March 14, 2017, which represents the date VA regulations allowed presumptive service connection for adult leukemia due to exposure to contaminated water at Camp LeJeune. VA treatment records indicate that the Veteran’s hairy cell leukemia has been in clinical remission since approximately September 2000, when the Veteran completed chemotherapy treatment. 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, as in this case, 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). 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 phase. 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 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 phase. 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) 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 a May 2017 statement, the Veteran noted that he previously received intravenous injections of chemotherapy to treat his hairy cell leukemia, that he is currently is remission, and that he was instructed to have follow-up checks. Ongoing VA treatment records show that the Veteran’s hairy cell leukemia is in remission. The Veteran underwent a VA examination in July 2017. The examiner noted that the Veteran’s hairy cell leukemia was in remission and that treatment was completed in 2000. There were no complications or residuals of treatment. Laboratory testing showed hemoglobin at 17.3 gm and a platelet count of 181,000. There was no evidence of anemia. The examiner indicated that the Veteran’s disability does not impact the Veteran’s ability to work. He remarked that, given a normal range of red blood cells count, white blood cells count, and platelets, the Veteran’s hairy cell leukemia continued to be in a clinical remission at the time of the examination. The examiner noted that the Veteran should continue to have regular monitoring of his blood counts on an indefinite basis. The Veteran was afforded another VA examination in November 2019, at which time he reported that he felt bad at the time of his 2000 chemotherapy treatment but has been good since that time. The examiner indicated that continuous medication was not required for control of a hematologic or lymphatic condition. The status of the Veteran’s primary hematologic or lymphatic condition was noted to be in remission. It was indicated that treatment was completed, and he was in watchful waiting status. The Veteran did not have anemia, thrombocytopenia, polycythemia vera, or sickle cell anemia. It was indicated that he has hairy cell leukemia, which was in remission, noted as asymptomatic, Rai Stage 0. The examiner noted November 2019 laboratory testing results which showed hemoglobin at 15.2 gm and a platelet count of 161,000. It was indicated that the Veteran’s condition did not impact his ability to work. In his January 2020 VA Form 9 lay statement, the Veteran indicated that he has had his leukemia taken care of since 2000. He stated that he had to stay in the hospital for two weeks and that he was on observation for several months, when he was infused with Cladribine. He noted that he was sent home for recovery and was observed for several months, close to a year. The Veteran stated that he is requesting compensation for the time he suffered with the disease. VA treatment records dated in 2000 support the Veteran’s claim that he was hospitalized and treated for his leukemia with Cladribine – in 2000. No subsequent treatment is shown for this disability in the Veteran’s treatment records. In a June 2020 Appellate Brief, the Veteran’s representative argues that the Veteran is entitled to an increased rating based on residuals of his hairy cell leukemia. He referred to the Veteran’s January 2020 VA Form 9 lay statement, indicating that the Veteran’s rating should be increased based on prior treatment for this disability. Based on a review of the record, the Board finds that a compensable disability rating is not warranted. As noted, Diagnostic Code 7703 prior to the revised regulation directs that in the absence of active leukemia, the disability should be evaluated under Diagnostic Code 7700 or 7716, whichever would result in the greater benefit. Here, the evidence does not demonstrate that the Veteran’s leukemia is active. Both VA examinations and VA treatment records clearly indicate that the Veteran’s leukemia has been in remission. The Veteran has not presented any evidence to the contrary. In fact, in his May 2017 lay statement, the Veteran indicated that his leukemia is currently in remission. The revised Diagnostic Code 7703 directs that if there is no recurrence, the disability 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. Further, he has not presented any evidence to show 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. The record does not show evidence of a diagnosis of anemia, and hemoglobin levels, as shown in VA treatment records and VA examination reports, have not been shown to be 10 gm/100 ml (g/dL) or less at any time during the appeal period. The Veteran’s bloodwork showed hemoglobin levels to be no less than 15.2 gm/100 ml (g/dL). As there has been no evidence of hemoglobin findings of 10 gm/100 ml (g/dL) or less, the Board finds that the evidence does not more nearly approximate a compensable rating under the criteria for Diagnostic Code 7700. As such, a compensable rating under Diagnostic Code 7700 is not 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 at any point during the appeal period, and there is no evidence that the Veteran requires intravenous iron infusions, high-dose oral supplementation, continuous B12 therapy, and immunosuppressive therapy. Diagnostic Code 7704 for polycythemia vera and Diagnostic Code 7719 for chronic myelogenous leukemia do not provide for a compensable rating as the evidence does not show that the Veteran has been diagnosed with polycythemia vera or chronic myelogenous leukemia. There is no evidence of a diagnosis of thrombocytopenia to warrant a rating under Diagnostic Code 7705. Moreover, platelet counts throughout the appeal 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 VA examinations do 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 white blood cell count of 4,000-10,000. The Board finds that there are no other appropriate diagnostic codes which would provide for a compensable rating. Thus, a compensable rating is not warranted. The Board has also considered the Veteran’s lay statements that his leukemia warrants a higher rating. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of this disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his leukemia has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners possess the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base their conclusions, the Board finds the medical opinions to be more probative than the Veteran’s subjective complaints of increased symptomatology. The Board also notes that the Veteran’s primary argument is that he is warranted a higher rating based on his level of disability at the time he was first diagnosed with leukemia. The Board reiterates that the Veteran’s leukemia has been in remission since 2000, the year he was first diagnosed with the disability, and presumptive service connection for this disability was not warranted until March 2017. In sum, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for the service-connected hairy cell leukemia. The benefit-of-the-doubt rule is not applicable, and the appeal for a compensable rating is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, Associate 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.