Citation Nr: 21066319 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 11-23 788 DATE: October 29, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for polycythemia vera on an extraschedular basis is denied. REMANDED Entitlement to a rating higher than 30 percent prior to December 18, 2015, and higher than 60 percent as of December 18, 2015, for post-operative lung cancer residuals with scarring, chronic obstructive pulmonary disease, and chronic bronchitis is remanded. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for right lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. Entitlement to a rating higher than 10 percent prior to December 30, 2015, and higher than 20 percent as of July 6, 2021, for right femoral nerve peripheral neuropathy is remanded. Entitlement to an initial rating higher than 0 percent for right lower extremity internal saphenous nerve peripheral neuropathy is remanded. Entitlement to an initial rating higher than 0 percent for right lower extremity external cutaneous nerve peripheral neuropathy is remanded. Entitlement to an initial rating higher than 0 percent for right lower extremity obturator nerve peripheral neuropathy is remanded. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for left lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. Entitlement to a rating higher than 10 percent prior to December 30, 2015, and higher than 20 percent as of July 6, 2021, for left femoral nerve peripheral neuropathy is remanded. Entitlement to an initial rating higher than 0 percent for left lower extremity internal saphenous nerve peripheral neuropathy is remanded. Entitlement to an initial rating higher than 0 percent for left lower extremity external cutaneous nerve peripheral neuropathy is remanded. Entitlement to an initial rating higher than 0 percent for left lower extremity obturator nerve peripheral neuropathy is remanded. FINDING OF FACT The Veteran's polycythemia vera does not present such an exceptional disability picture that it makes the rating schedule inadequate. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent on an extraschedular basis for polycythemia vera have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.118. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1971 to March 1973. He served in the Republic of Vietnam. The Veteran appeared at a May 2015 hearing before the undersigned Veterans Law Judge sitting at the Atlanta, Georgia, Regional Office. The hearing transcript is of record. In September 2016, the Board of Veterans' Appeals (Board) denied ratings higher than 10 percent for right and lower extremity peripheral neuropathy prior to December 30, 2015; granted 30 percent ratings for those disabilities, effective December 30, 2015; and denied an initial rating higher than 10 percent for polycythemia vera. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In September 2017, the United States Court of Appeals for Veterans Claims granted the Parties' September 2017 Joint Motion for Partial Remand; vacated those portions of the September 2016 Board decision which denied ratings higher than 10 percent for the right and left lower extremity peripheral neuropathy prior to December 20, 2015; and referral for consideration of the assignment of an extra-schedular rating in excess of 10 percent under 38 C.F.R. §3.321(b)(1) for polycythemia vera; and remanded the appeal for additional action consistent with the Joint Motion for Partial Remand. In January 2019, the Agency of Original Jurisdiction (AOJ) recharacterized the right lower extremity peripheral neuropathy as right lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy rated as 40 percent disabling and right internal saphenous nerve peripheral neuropathy rated as 0 percent disabling; recharacterized the left lower extremity peripheral neuropathy as left lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy rated as 40 percent disabling and left internal saphenous nerve peripheral neuropathy rated as 0 percent disabling; and effectuated the ratings as of March 13, 2018. In November 2019, the Agency of Original Jurisdiction granted service connection for right femoral nerve peripheral neuropathy and left femoral nerve peripheral neuropathy and assigned 10 percent ratings for those disabilities, effective from December 10, 2009, to December 30, 2015. In April 2020, the Board denied a higher rating than 30 percent for post-operative lung cancer residuals with scarring, chronic obstructive pulmonary disease (COPD), and chronic bronchitis prior to December 18, 2015. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In March 2021, the United States Court of Appeals for Veterans Claims granted the Parties' March 2021 Joint Motion for Partial Remand; vacated the portion of the March 2020 Board decision which denied a higher rating than 30 percent for post-operative lung cancer residuals with scarring, chronic obstructive pulmonary disease (COPD), and chronic bronchitis. In April 2021, the Board remanded the claims for further development. In August 2021, the Agency of Original Jurisdiction granted service connection for bilateral lower external cutaneous nerve peripheral neuropathy and bilateral obturator nerve peripheral neuropathy and assigned 0 percent ratings for those disabilities, effective July 6, 2021. Extraschedular Ratings An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating criteria for that service-connected disability are inadequate. This requires the Board to compare a Veteran's specific symptoms and their severity with those contemplated by the schedular criteria. King v. Shulkin, 29 Vet. App. 174 (2017). Second, if the Veteran's symptoms or their severity is not contemplated by the rating schedule, the Board to must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. Third, if the first two elements are met, the final element mandates that the Board refer the claim to the Director of Compensation Service for a determination about whether an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321 (b). 1. Entitlement to an initial rating in excess of 10 percent for polycythemia vera on an extraschedular basis The Veteran's polycythemia vera is rated as 10 percent under Diagnostic Code 7704. The Diagnostic Criteria for hemic and lymphatic systems were revised during the pendency of the appeal, effective December 9, 2018. Under the former Diagnostic Code 7704, a 10 percent rating is warranted when the condition is stable, with or without continuous medication. A 40 percent rating is warranted when phlebotomy is required. A 100 percent rating is warranted during periods of treatment with myelosuppressants and for three months following cessation of myelosuppressant therapy. 38 C.F.R. § 4.118, Diagnostic Code 7704. Under current Diagnostic Code 7704, a 10 percent rating is warranted when the condition requires phlebotomy three 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 four to five 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. A 60 percent rating is warranted when the condition requires phlebotomy six or more times per 12-month period or molecularly targeted therapy for the purpose of controlling red blood cell (RBC) count. A 100 percent rating is warranted when the condition requires peripheral blood or bone marrow stem-cell transplant or chemotherapy (including myelosuppressants) for the purpose of ameliorating the symptom burden. Note (1) of the current Diagnostic Code instructs VA to rate complications such as hypertension, gout, stroke, or thrombotic disease separately. The Board finds that an extraschedular rating for polycythemia vera is not warranted at any time throughout the appeal period. The Veteran's polycythemia vera is in remission. Blood work indicates normal levels of platelets and white blood cells. At a December 2015 VA examination, the examiner found the Veteran was concurrently diagnosed with polycythemia vera in remission and found not to have polycythemia vera, the Board has previously found that examination was of no probative value due to the conflicting findings. The examiner also attributed fatigue, shortness of breath, and dyspnea on mild exertion to the polycythemia vera. However, the examiner also noted that the Veteran had lung cancer which would cause fatigue. These findings were the basis for determining whether an extraschedular rating was warranted. The September 2017 Joint Motion suggested extraschedular consideration may be appropriate since the findings in the December 2015 VA examination were not contemplated under Diagnostic Code 7704. Specifically, fatigue, shortness of breath, and dyspnea on mild exertion. Accordingly, the January 2018 Board remand referred the claim to the Director of Compensation Service. In a February 2020 advisory opinion, the Director of Compensation Service found the evidence did not support 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. The Director reviewed the December 2015 VA examination which showed findings, signs and symptoms due to a hematologic or lymphatic disorder that included easy fatigability. However, the Director noted that the December 2015 examiner found the lung cancer could also cause fatigue. The Director noted the reported functional impact on the Veteran's ability to work since the December 2015 examiner found that the Veteran was unable to bend, lift, or engage in prolonged walking, sitting, or standing. As the polycythemia vera was in remission and did not require treatment, the Director concluded that the Veteran's disability did not present an exceptional or unusual disability picture to warrant a higher rating on an extraschedular basis. Further, the record did not demonstrate marked interference with employment and frequent periods of hospitalization. At an October 2020 VA examination, the Veteran reported that he had blood draws every six months to monitor his condition. Although he had worsening fatigue, the Veteran denied treatment for the condition. The examiner found the condition was active and all lab results were normal. There was no functional impact. The Board notes the examination was conducted by a nurse practitioner and not a physician as instructed in the April 2020 remand. At a July 2021 VA examination, the Veteran was diagnosed with polycythemia vera and it was noted to be in remission. The disability had improved and there was no current treatment. The examiner explained that the Veteran was asymptomatic and had normal HGB and HCT levels. There were no complications and no treatment or therapy was required. Further, there was no impact on vocational activities due to polycythemia vera. The Board notes the evidence discussed in the September 2017 Joint Motion. While the medical evidence cited showed that the Veteran experienced fatigue, shortness of breath, and dyspnea on mild exertion, the December 2015 VA examination report included conflicting findings and was determined to provide no probative value. Additional medical evidence did not support that the noted symptomatology was attributable to the polycythemia vera. At the March 2011 VA examination, the Veteran reported shortness of breath and weekly asthma attacks in reference to the service-connected pulmonary disabilities. Those limitations did not affect the ability to work, but they interfered with daily activities. However, VA treatment notes reported that the Veteran was fatigued due to Hepatitis C and lung cancer residuals. Further, at the December 2015 VA respiratory examination, the Veteran reported occasional shortness of breath and fatigue. The Veteran clarified at the January 2017 VA respiratory examination that he had shortness of breath since the lung cancer surgery. VA treatment records show continued complaints of fatigue and shortness of breath while the polycythemia vera is in remission. The additional symptomatology has not been attributed to polycythemia vera. Instead, treatment records show episodes of fatigue and shortness of breath with Hepatitis C flare-ups and the service-connected post-operative lung cancer residuals with scarring, chronic obstructive pulmonary disease, and chronic bronchitis. The Veteran has not otherwise indicated that polycythemia vera causes marked interference with employment. In addition, there is no evidence of frequent periods of hospitalization due to his polycythemia vera. Thus, the Board finds that an extraschedular rating for polycythemia vera is not warranted in this case. The Board notes that the January 2018 Board remand found the evidence met the requirements for a remand to the Agency of Original Jurisdiction for referral to the Director of Compensation for consideration of the assignment of an increased rating on an extraschedular basis. Based on the Veteran's reported symptomatology at the December 2015 VA examination, the Board found that referral was warranted. The Board's finding indicates consideration of the how the Veteran's additional symptomatology was not contemplated under Diagnostic Code 7704, and concludes that, in light of the other evidence cited reflecting little or no impact on work, the symptoms of the Veteran's polycythemia vera do not cause marked interference with employment or frequent periods of hospitalization. Therefore, the Board finds that the evidence does not demonstrate such an exceptional disability picture that already assigned schedular rating is inadequate. Accordingly, the Board finds that entitlement to an increased rating on an extraschedular basis for polycythemia vera is not warranted. 38 C.F.R. § 3.321(b). REASONS FOR REMAND 1. Entitlement to increased ratings for post-operative lung cancer residuals with scarring, chronic obstructive pulmonary disease, and chronic bronchitis is remanded. In an April 2020 decision, the Board denied a rating higher than 30 percent prior to December 18, 2015. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims. In the March 2021 Joint Motion for Remand, the Court vacated and remanded the Board's decision. In the March 2021 Joint Motion, the parties agreed that the Board did not address whether the Veteran's daily use of Symbicort warranted a higher rating. Further, the Board did not consider the applicability of Diagnostic Code 6602 with the Veteran's prescription inhalers. The Board finds a remand is necessary to obtain an opinion on the Veteran's daily use of Symbicort and other prescription inhalers. In April 2021, the Board remanded the claim for a rating higher than 60 percent as of December 18, 2015, for not obtaining a December 18, 2015, pulmonary function testing report. The Board notes that the report was obtained. Because a decision on the claim for an increased rating prior to December 18, 2015, is being remanded could significantly impact a decision on the issue of an increased rating as of December 18, 2015, the issues are inextricably intertwined. A remand of the claim for an increased rating as of December 18, 2015, is required. 2. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for right lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. 3. Entitlement to a rating higher than 10 percent prior to December 30, 2015, and higher than 20 percent as of July 6, 2021, for right femoral nerve peripheral neuropathy is remanded. 4. Entitlement to an initial rating higher than 0 percent for right lower extremity internal saphenous nerve peripheral neuropathy is remanded. 5. Entitlement to an initial rating higher than 0 percent for right lower extremity external cutaneous nerve peripheral neuropathy is remanded. 6. Entitlement to an initial rating higher than 0 percent for right lower extremity obturator nerve peripheral neuropathy is remanded. 7. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for left lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. 8. Entitlement to a rating higher than 10 percent prior to December 30, 2015, and higher than 20 percent as of July 6, 2021, for left femoral nerve peripheral neuropathy is remanded. 9. Entitlement to an initial rating higher than 0 percent for left lower extremity internal saphenous nerve peripheral neuropathy is remanded. 10. Entitlement to an initial rating higher than 0 percent for left lower extremity external cutaneous nerve peripheral neuropathy is remanded. 11. Entitlement to an initial rating higher than 0 percent for left lower extremity obturator nerve peripheral neuropathy is remanded. In an April 2021 remand, the Board observed that the October 2020 VA examination did not comply with the April 2020 remand requests, which specifically requested that the presence or absence of foot drop should be reported in the examination report and that the VA examination be conducted by a physician. The October 2020 VA examination was conducted by a nurse practitioner. In November 2020, the AOJ had a VA staff physician review the Veteran's medical records to provide an addendum opinion. However, the November 2020 VA staff physician was not the individual who performed the October 2020 VA examination, and the record does not show that individual examined the Veteran. The November 2020 VA staff physician specified that the opinion was not based on examination of the Veteran. Therefore, the record was unclear regarding the actual presence or absence of foot drop. The April 2021 remand instructed that an examination be provided by a medical doctor that addressed the severity of bilateral peripheral neuropathy. The examiner was to specifically state whether there was foot drop and what testing was provided to make that determination. In a July 2021 examination report and medical opinion, a VA physician described the Veteran's symptoms, identified the affected nerves, and indicated the level of severity of the affected nerves. Although the examiner found a right foot drop, the examiner did not state what testing was performed to make that determination. The Agency of Original Jurisdiction's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App.79 (2006); Green v. Derwinski, 1 Vet. App.121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the cited deficiencies in the July 2021 VA examination report and the failure to comply with the Remand instructions, the Board finds that further VA evaluation is necessary. The matters are REMANDED for the following action: 1. After obtaining appropriate authorization, obtain any VA and private treatment records identified by the Veteran that are not already of record, to specifically include all pharmacy records. 2. Schedule the Veteran for a VA examination with a medical doctor to provide an opinion on the service-connected lung cancer residuals. The examiner must review the claims file and should note that review in the report. A complete rationale for all opinions should be provided in the examination report. The examiner should: (a.) Confirm that the examiner is a medical doctor. (b.) Describe in detail the Veteran's prescription drug use since 2007 for lung cancer and lung cancer residuals, including any scarring, chronic obstructive pulmonary disease, and chronic bronchitis. The examiner is advised that Symbicort is considered a corticosteroid treatment. (c.) Indicate if the Veteran's lung cancer residuals require the use of intermittent inhalational or oral bronchodilator therapy; daily inhalational or oral bronchodilator therapy; inhalational anti-inflammatory medication; intermittent courses of systemic corticosteroids; or daily use of systemic high dose corticosteroids or immuno-suppressive medications. The examiner should state whether those medications are systemic corticosteroids and their dosages. 3. Schedule the Veteran for a VA neurology examination conducted by a medical doctor to assist in determining the nature and severity of service-connected right lower extremity and left lower extremity peripheral neuropathy. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Confirm that the examiner is a medical doctor. (b.) Provide a description of symptoms for both lower extremities and opine as to the level of severity of the lower extremity peripheral neuropathy in each extremity. All affected nerves should be specifically identified and the severity of peripheral neuropathy in each affected nerve described. (c.) Opine whether the lower extremity peripheral neuropathy causes any impairment of mobility. (d.) For the right and left lower extremity, specifically state whether or not there is foot drop for each extremity, and state what testing was used to make that determination. (e.) Provide an opinion as the impact of the lower extremity neurological disabilities on the Veteran's vocational activities. (f.) Opine whether the service-connected lower extremity disabilities result in loss of use of either leg such that the Veteran would be equally well-served by amputation with the use of a prosthetic device. If so, opine as to the level of loss of use, such as the toes, forefoot, foot, ankle, below the knee, above the knee, at the hip. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.