Citation Nr: A21018696 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 191217-55543 DATE: November 23, 2021 ORDER Entitlement to a 10 percent disability rating for service-connected anemia, status post non-Hodgkin's lymphoma with scar (previously rated as Non-Hodgkin's lymphoma) is granted, effective October 1, 2019. FINDING OF FACT Effective October 1, 2019, the Veteran's service-connected non-Hodgkin's lymphoma was manifested by iron deficiency anemia requiring continuous treatment with oral supplementation; however, it was not manifested as requiring intravenous iron infusions four or more times during any 12-month period; and it was not manifested by a hemoglobin reading of 8gm/100ml or less. CONCLUSION OF LAW Effective October 1, 2019, the criteria for a 10 percent disability rating for service-connected anemia, status post non-Hodgkin's lymphoma are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.117, Diagnostic Code 7715, 7720. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to June 1969. In July 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the reduction of the 100 percent disability rating assigned to his service-connected non-Hodgkin's lymphoma, and the subsequent assignment of a noncompensable rating for anemia, status post non-Hodgkin's lymphoma. In October 2019, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which implicitly found that new and relevant evidence had been received and denied the claim on the merits based on the evidence of record at the time of that decision. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified before the Board at a March 2021 hearing. A transcript of that hearing has been associated with the claims file. Increased Ratings By way of background, a September 2017 rating decision granted service connection for non-Hodgkin's lymphoma and assigned a 100 percent disability rating, effective May 12, 2017, pursuant to Diagnostic Code 7715. 38 C.F.R. § 4.117. In doing so, the AOJ noted that the Veteran's private treatment records revealed that he was diagnosed with non-Hodgkin's lymphoma in late 2016, and that he underwent a right-side colon hemicolectomy on January 10, 2017. In a July 2019 rating decision, the AOJ reduced the rating assigned to the Veteran's service-connected non-Hodgkin's lymphoma from 100 percent to noncompensable under Diagnostic Code 7715-7720, effective October 1, 2019. In assigning the noncompensable rating, the AOJ noted that his non-Hodgkin's lymphoma residuals included anemia; however, it noted that his non-Hodgkin's lymphoma was asymptomatic, and that his anemia was manifested by easy fatigability, lightheadedness, and hemoglobin 14.4gm/100ml. In the October 2019 rating decision on appeal, the AOJ reaffirmed the reduction of the rating assigned to the Veteran's service-connected non-Hodgkin's lymphoma from 100 percent to noncompensable under Diagnostic Code 7715-7720, effective October 1, 2019. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board notes that, during the pendency of the appeal, 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. 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 (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). See 83 Fed. Reg. 54256 (October 29, 2018). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former Diagnostic Code 7700, a 10 percent rating is assigned for anemia with a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is assigned 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 assigned for a hemoglobin level of 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). A 100 percent rating is assigned for anemia with a hemoglobin level of 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. A note to Diagnostic Code 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, should be evaluated separately. 38 C.F.R. § 4.117 (2018). Under the former Diagnostic Code 7715, non-Hodgkin's lymphoma with active disease or during a treatment phase warranted a 100 percent evaluation. The 100 percent rating continued beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating was to be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination was subject to the provisions of 3.105(e) of this chapter. If there was no local recurrence or metastasis, rate on residuals. 38 C.F.R. § 4.117, Diagnostic Code 7715, Note (in effect prior to December 9, 2018). Effective December 9, 2018, Diagnostic Code 7715 was revised. See 38 C.F.R. § 4.117. Under the revised rating criteria, a 100 percent disability rating is warranted for non-Hodgkin's lymphoma when there is active disease, during a treatment phase, or with indolent and non-contiguous phase of low-grade non-Hodgkin's lymphoma. The 100 percent rating is to continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Two years 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 under the appropriate diagnostic code(s). 38 C.F.R. § 4.117, Diagnostic Code 7715, Note (effective December 9, 2018). Effective December 9, 2018, Diagnostic Code 7720 provides for a noncompensable rating for asymptomatic iron deficiency anemia or requiring treatment only by dietary modification. A 10 percent rating is provided for 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. Finally, iron deficiency anemia requiring intravenous iron infusions 4 or more times per 12-month period warrants a maximum 30 percent rating. 38 C.F.R. § 4.117, Diagnostic Code 7720 (effective December 9, 2018). Initially, the Board finds that the AOJ complied with the requirements of 38 C.F.R. § 3.105(e). In April 2018, the Veteran was informed of the proposed action in a rating decision that set forth the material facts and reasons for the proposal. In an April 2018 letter, he was notified of his opportunity to present additional evidence within a 60-day period, as well as his right to request a personal hearing. Therefore, the Board finds that the requirements of 38 C.F.R. § 3.105(e) were met. A March 2018 VA examination report noted the Veteran's diagnoses of non-Hodgkin's lymphoma and anemia. After noting his pertinent medical history, the examiner noted that his current symptoms consisted of fatigue, anemia, and bowel abnormalities consisting of diarrhea, bloating, and heartburn. It was noted that he underwent a right hemicolectomy with ileotransverse colostomy on January 10, 2017, and that he was now taking iron and B12 supplements. The examiner then noted that continuous medication was not required to control a hematologic or lymphatic condition, and that the Veteran's disease was in remission. Again, it was noted that the Veteran had anemia, but he did not have thrombocytopenia or any complications or residuals of treatment requiring transfusion of platelets or red blood cells. His symptoms included easy fatigability and light-headedness, as well as chronic diarrhea and malabsorption of vitamins and iron causing anemia. He did not have recurring infections, polycythemia vera, or sickle cell anemia. A July 2019 letter from the Veteran's private treatment provider noted that his anemia was treated using an over-the-counter iron supplement along with Vitamin C, and that his hemoglobin number maintained a normal range greater than 14gm/100ml. The Veteran underwent another VA examination in October 2019, and the examiner noted his diagnosis of non-Hodgkin's lymphoma, and that he was taking iron supplements and Vitamin C. The examiner also noted that recent records did not reveal a recurrence of the lymphoma. He denied night sweats, fevers, and weight loss; however, he reported light-headed ness when bending forward. The examiner then noted that continuous medication was not required to control a hematologic or lymphatic condition, and that his disease was in remission. The examiner concluded that the Veteran no longer had anemia given the test results showing hemoglobin greater than 14gm/100ml; he also did not have thrombocytopenia or any complications or residuals of treatment requiring transfusion of platelets or red blood cells. He also did not have recurring infections or polycythemia vera. Initially, the Board notes that the revised criteria are clearly more beneficial to the Veteran given that they allow for the 100 percent disability rating to continue for no less than two years following the cessation of surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures, versus only six months under the rating criteria in effect prior to December 9, 2018. As noted above, both the March 2018 and October 2019 VA examiners indicated that the Veteran's underwent a right hemicolectomy with ileotransverse colostomy on January 10, 2017, that the Veteran's non-Hodgkin's lymphoma was in remission, and that there was no recurrence. Thus, the 100 percent disability rating is warranted through, at the very least, January 10, 2019. In this case, however, the 100 percent rating was in place through September 30, 2019, an additional eight and a half months. With regards to the residuals associated with the Veteran's non-Hodgkin's lymphoma, as noted above, both VA examiners noted that he previously dealt with anemia; however, his anemia was successfully treated with iron supplements and Vitamin C given test results showing hemoglobin greater than 14gm/100ml. As noted above, the former Diagnostic Code 7700 allows for a 10 percent rating for anemia with a hemoglobin level of 10gm/100ml or less. Given that the Veteran's hemoglobin greater than 14gm/100ml, a compensable rating is not warranted under the former Diagnostic Code 7700 at any time during the appeal period. As for the new Diagnostic Code 7720, the Board finds that a 10 percent disability rating is warranted, effective October 1, 2019, given the evidence of record showing that the Veteran's anemia is now under control because his anemia required continuous treatment with oral supplementation. An evaluation in excess of 10 percent requires evidence showing that the Veteran required intravenous iron infusions four or more times during any 12-month period, and such is not shown in this case. Rather, the evidence addressing the severity of the Veteran's iron deficiency anemia disability clearly reflects that his iron deficiency simply continuous treatment with oral supplementation. In summation, after resolving all reasonable doubt in the Veteran's favor, the Board finds that a 10 percent disability rating is warranted under Diagnostic Code 7720, effective October 1, 2019, the day after his 100 percent disability rating is terminated. However, the preponderance of the evidence is against the continuation of the 100 percent disability rating under Diagnostic Code 7715 beyond September 30, 2019, and the preponderance of the evidence is against the assignment of a higher rating for the Veteran's residuals of non-Hodgkin's lymphoma. Because the preponderance of the evidence is against higher ratings at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102, 4.3. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.