Citation Nr: 21000566 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-04 862A DATE: January 5, 2021 ORDER Entitlement to a rating higher than 10 percent for service-connected residuals status-post non-hodgkin’s lymphoma is denied. FINDINGS OF FACT 1. For the period prior to December 9, 2018, the Veteran’s anemia manifested as hemoglobin levels in excess of 10gm/100ml. 2. From December 9, 2018, the anemia manifested as an asymptomatic iron deficiency, which did not require intravenous iron infusions or oral supplementation, and which did not manifest as a hemoglobin level of 8gm/100ml or less. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for service-connected residuals of non-hodgkin’s lymphoma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.117, Diagnostic Codes 7700 & 7720. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Navy from December 1986 to July 2006. He testified at Board hearing in July 2019 before the undersigned Veterans Law Judge. A transcript is associated with the record. In December 2019, the Board remanded the appeal to schedule the Veteran for a VA examination. The exam was conducted in September 2020. 1. Entitlement to a rating higher than 10 percent for residuals of non-hodgkin’s lymphoma. On October 29, 2018, VA issued a final rule revising 38 C.F.R. § 4.117, the portion of the VA Schedule for Rating Disabilities that addresses the hemic and lymphatic systems, effective 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. The rule removed Diagnostic Code 7700 (Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) and added separate 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). The Veteran was awarded a 10 percent rating, effective September 2, 2010, based on anemia causing residual fatigue under Diagnostic Code 7700. Under the rating criteria in effect prior to December 9, 2018, Diagnostic Code 7700 provided that a 0 percent rating was warranted for anemia when the hemoglobin level was 10gm/100ml or less and the condition was asymptomatic. A 10 percent rating was warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent evaluation is assigned for hemoglobin 8gm/100ml or less with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent evaluation is assigned for hemoglobin 7gm/100ml 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). Finally, a 100 percent is assigned for hemoglobin 5gm/100ml or less with findings such a high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117, Diagnostic Code 7700. From December 9, 2018, iron deficiency anemias are rated under Diagnostic Code 7720. Pursuant to Diagnostic Code 7720, iron deficiency anemia requiring intravenous iron infusions at least 1 time, but less than 4 times, per 12-month period, or requiring continuous treatment with oral supplementation, warrants a 10 percent disability rating. A 30 percent disability rating is warranted if the iron deficiency anemia requires intravenous iron infusions 4 or more times per 12-month period. 38 C.F.R. § 4.117. When a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. See VAOPGCPREC 7-03. If application of an amended regulation has a retroactive effect, then the regulation cannot be applied. Rodriguez v. Peake, 511 F.3d 1147, 1153 (Fed. Cir. 2008). But even if the amended versions are more favorable, the amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. See VAOPGCPREC 3-00; 65 Fed. Reg. 33,422 (2000); see also Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Treatment records show the Veteran reported having longstanding mild anemia and he was asymptomatic for lymphoma. In October 2018, a physician noted a history of chronically low hematocrit and hemoglobin, which were stable. An MRI of the lumbar spine was completed in December 2017 and showed “a nonspecific finding which can be seen with red marrow reconversion in the setting of anemia but could also be seen with leukemia/lymphoma.” Follow up was indicated but no other records were included. Private treatment from March 2017 showed hemoglobin at 12.7 During the July 2019 hearing, the Veteran reported increased symptoms, including becoming easily fatigued on days he exercised. He had not received any recent treatment. The Veteran was afforded VA examinations in October 2010 and most recently, in September 2020. The October 2010 examiner found that his lymphoma was in remission, but he continued to experience persistent fatigue. His hemoglobin was noted at 12.3 g/dL. The examiner also diagnosed anemia but found the etiology was unknown. During the September 2020 examination, the examiner noted the Veteran had acquired hemolytic anemia that was asymptomatic and caused by treatment for his lymphatic condition. His hemoglobin was noted at 11.4 gm/100ml. He experienced fatigue, dyspnea when walking more than a quarter mile and climbing more than two flights of stairs. Based on the foregoing, a higher rating for the Veteran’s residuals of non-hodgkin’s lymphoma is not warranted. The Board will address both the prior and current regulations. Diagnostic Code 7700 The Veteran’s hemoglobin was measured, at worst, to 11.4 gm/100ml during the appeal period. He also complained of persistent fatigue. He was assigned a 10 percent rating based on his complaints of residual fatigue. A higher rating is not warranted as there is no medical evidence during the appeal period showing the Veteran’s anemia was productive of hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. Further, there are no more severe symptoms or findings such as cardiomegaly, tachycardia, syncope, or high output congestive heart failure. Although the Veteran complained of persistent fatigue and dyspnea on mild exertion, his hemoglobin levels have never been lower than 11.4. Without evidence of hemoglobin levels of 8gm/100ml or lower, an evaluation in excess of 10 percent cannot be granted. Diagnostic Code 7720 (Effective December 9, 2018) The Veteran does not have anemia requiring intravenous iron infusions or continuous treatment with oral supplementation at any point during the appeal period. The September 2020 VA examination indicated his anemia was asymptomatic, which would be assigned a noncompensable rating under this diagnostic code. The Board appreciates the Veteran’s sincere belief that his non-hodgkin’s lymphoma residuals warrant a rating higher than the 10 percent rating currently assigned. The Board considered the Veteran’s competent testimony as to the residuals and functional impact of his disability; however, even considering his lay reports, he does not meet the criteria for a rating higher than 10 percent. In other words, the evidence does not support a higher rating under either the current or previous regulations. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased initial rating for non-hodgkin’s lymphoma. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.