Citation Nr: 21003445 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-34 350A DATE: January 21, 2021 REMANDED 1. Entitlement to a rating in excess of 20 percent for stage 4 non-Hodgkin’s lymphoma (NHL) is remanded. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1969 to May 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In May 2018, a Travel Board hearing was held before the undersigned. The TDIU issue was added to the appeal because a TDIU claim is part of an increased rating claim when such claim, as here, is asserted by the Veteran and/or raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2018, the Board remanded the case to the RO for additional development of the claims. 1. Entitlement to an initial rating in excess of 20 percent for stage 4 NHL Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. The November 2019 VA hematologic and lymphatic conditions examination report is deficient because it does not provide an accurate and fully descriptive assessment of all NHL residuals found. Instead, for his conclusion that the Veteran’s NHL is in an indolent and non-contiguous phase of low-grade NHL, the examiner stated that there were no lab results available. He did not indicate whether current testing was even necessary to accurately reflect the Veteran’s condition (he evidently relied on the absence of any current hematology/oncology records and on previous medical records noting the NHL was in remission). He noted the Veteran had subjective complaints of night sweats, fatigue, dizziness, lightheadedness, and weakness, but did not further describe “episodes” of these symptoms in terms of frequency and number for each year, as requested. (He felt such symptoms could also be due to service-connected post-traumatic stress disorder (PTSD) and a nonservice-connected heart disability. Notably, a May 2020 rating decision denied service connection for multiple heart disabilities, to include as secondary to NHL; the period to appeal this decision has not yet expired.) Another remand is unavoidable. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also observes that in an October 2020 statement in support of the claim, the Veteran’s representative challenged the competency of the November 2019 (fee basis) VA medical examiner, asserting that the physician did not appear to have any specialized training beyond family medicine, as shown in a certain online profile. In such circumstances, where the Veteran has explicitly raised the issue of the examiner’s competency – i.e., that an examiner did not possess the particular expertise, experience, training, or competence to comment on the matter on appeal, the burden shifts to the VA to establish the examiner’s competence. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Here, the current record does not provide sufficient information to allow for a response to the competency challenge. The new examination must be conducted by an appropriate clinician (with some specific subject matter expertise). Before the examination, the RO should secure any updated VA and private treatment records not already associated with the claims file. 2. Entitlement to TDIU As the TDIU claim is inextricably intertwined with the higher rating for stage 4 NHL claim, its consideration is deferred pending completion of the development of the NHL matter. The matters are REMANDED for the following action: 1. Obtain for association with the claims file all updated (since May 2020) records of VA evaluations and treatment that the Veteran has received for NHL (and his other service-connected disabilities). 2. Then, arrange for the Veteran to be examined by an oncologist (or other appropriate clinician with experience in treatment/evaluation of NHL or like diseases), to assess the current nature and severity of his service-connected NHL. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and if no testing (e.g., lab tests) is found to be necessary, it should be fully explained why that is so. The examiner should indicate whether the Veteran’s NHL is in an active phase, and if not, provide an accurate and fully descriptive assessment of all residuals of NHL found. If there has not been any local recurrence or metastasis of active NHL, the examiner should indicate whether the Veteran has (has had) any “crises” and “episodes” since the VA examination in February 2016, to include the frequency/number of such crises and/or episodes for each year. [For VA purposes, a “crisis” consists of the rapid onset of peripheral vascular collapse (with acute hypotension and shock), with findings that may include anorexia, nausea, vomiting, dehydration, profound weakness, pain in the abdomen/legs/back, fever, apathy, and depressed mentation. An “episode” is a less severe/acute event than a crisis and may consist of anorexia, nausea, vomiting, diarrhea, dehydration, weakness, malaise, orthostatic hypotension, or hypoglycemia, but not peripheral vascular collapse.] The examiner should identify all/any residuals of the Veteran’s NHL. See, for example, his complaints of vomiting, dehydration, weakness, and pain (in the abdomen, legs, and back) during a May 2018 Board hearing, and his complaints of night sweats, fatigue, dizziness, lightheadedness, and weakness on November 2019 VA examination. The examiner should distinguish all signs and symptoms (or any residuals) of the disability from (a) nonservice-connected disabilities and (b) his service-connected PTSD and unspecified depressive disorder with symptoms of anxious distress. The examiner should also describe the Veteran’s functional and industrial impairment caused by his NHL, and furnish an opinion (disregarding age and effects of any nonservice-connected disabilities) as to the types of activities the Veteran remains able to participate in from a medical standpoint, if any, and the types of activities that are precluded by his service-connected NHL. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.