Citation Nr: 21072913 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-61 938 DATE: December 6, 2021 ORDER Entitlement to a 100 percent rating for Non-Hodgkin's Lymphoma (NHL) with postoperative residuals since May 13, 2021, is granted. Entitlement to a rating greater than 10 percent for pernicious anemia secondary to NHL since May 13, 2021, is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a rating greater than 10 percent for NHL with postoperative residuals from May 25, 2012 to May 12, 2021, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected NHL is remanded. FINDINGS OF FACT 1. The Veteran's NHL is reasonably shown to have been active since May 13, 2021. 2. The Veteran's pernicious anemia at no point required transfusions or involved central nervous system impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent rating for NHL have been met from May 13, 2021. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.117, Diagnostic Code (Code) 7715. 2. The criteria for entitlement to a rating greater than 10 percent for pernicious anemia secondary to NHL have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.117, DC 7722. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from December 1964 to February 1966. See DD Form 214. The Veteran was afforded a hearing before the undersigned in March 2020, and a transcript has been associated with the record. See March 2020 Hearing Transcript. The Board remanded this appeal in January 2021 to obtain outstanding records, which have since been associated with the record, and to provide VA examinations and obtain opinions regarding the etiology of bilateral hearing loss and the severity of the Veteran's NHL. See January 2021 BVA Decision. In addition, at that time the Board dismissed the issue of entitlement to TDIU from October 22, 2010, the date from which a 100 percent disability rating for PTSD was awarded, finding it rendered the TDIU claim moot. See January 2021 BVA Decision. Here, in light of the April 2020 opinion by Dr. G. Schwold that the Veteran was unable to work in part due to his NHL, diagnosed in 2008, the Board finds the issue of TDIU has reasonably been raised by the record, and as such, is included on the title page as part of his claim for an increased rating for NHL. His claim for increase has been considered since May 25, 2012, which the Board notes appears to correspond to the Veteran's claim for TDIU due to PTSD and residuals of prostate. See May 2012 Veteran's Application for Increased Compensation Based on Unemployability. Here, the Veteran's claim for TDIU as due to NHL is considered a part of the Veterans claim for entitlement to an increased rating for his NHL filed in May 2012, based on the Court's holding in Rice v. Shinseki, 22 Vet. App. 453 that "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." While on appeal, in July 2021 the agency of original jurisdiction (AOJ) awarded the Veteran a separate 10 percent rating, effective May 13, 2021, for pernicious anemia with Vitamin B12 deficiency due to NHL with postoperative stomach injury. See July 2021 Rating Decision- Narrative. Indeed, the Veteran's anemia is service connected as secondary to treatment for his NHL. See May 2021 VA Examination Hematologic and Lymphatic Conditions, including Leukemia Disability Benefits Questionnaire. Accordingly, the Board finds that it has jurisdiction over the issue of the initial rating for anemia, as part of the claim for a higher rating for NHL, because service connection for anemia was granted during the pendency of the appeal for NHL, as secondary to the NHL, specifically as a complication of treatment for the NHL. See Bailey v. Wilkie, 33 Vet. App. 188, 204 (2021) (VA is required to develop and adjudicate related claims for secondary service connection for disabilities, including complications, that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability); see Grimes v. McDonough, 34 Vet. App. 84 (2021) (holding that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream). The Board observes that the Veteran's former representative withdrew in April 2021, and this was acknowledged in August 2021, such that the Veteran no longer has representation. See April 2021 Third Party Correspondence; see August 2021 Correspondence. Based on the facts found, the Board will not delay in granting a 100 percent rating for the NHL from May 13, 2021; however, the question of what rating is warranted for the appeal period from May 25, 2012 to May 12, 2021, is as stated on the cover page, and is remanded for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a rating greater than 10 percent for NHL with postoperative residuals since May 25, 2012; and, 2. Entitlement to a rating greater than 10 percent for pernicious anemia secondary to NHL since May 13, 2021. A July 2009 rating decision service-connected the Veteran's NHL and postoperative residuals, stomach injury granting a 100 percent rating effective August 21, 2008, and a 10 percent rating effective June 24, 2009. See July 2009 Rating Decision-Narrative. The RO explained that in a June 24, 2009 examination report, the Veteran reported that he had not had a recurrence of the mucosa-associated lymphoid tissue (MALT) lymphoma, MALToma, although he experienced bloating, nausea, and intermittent stomach pain. Id. Then, in a June 2013 rating decision, the RO continued the 10 percent rating for NHL effective from May 25, 2012, which it considered the date of claim. See June 2013 Rating Decision-Narrative. In October 2013 the Veteran filed his notice of disagreement regarding the rating for NHL, currently rated as 10 percent disabling. See October 2013 NOD. Following a January 2021 Board remand, a June 2021 supplemental statement of the case continued the 10 percent rating for NHL, and granted a separate 10 percent rating for pernicious anemia with Vitamin B12 deficiency requiring continuous treatment with Vitamin B12, due to NHL, effective May 13, 2021. See June 2021 SSOC. Accordingly, as reflected in the most recent Codesheet, the Veteran is awarded a 10 percent disability rating, effective May 25, 2012, for NHL, postoperative residuals, stomach injury according to DCs 7310-7301 (formerly 7715-7310), and a 10 percent rating for pernicious anemia with Vitamin B12 deficiency anemia due to NHL with postoperative stomach injury associated with NHL, effective from May 13, 2021, according to DC 7722. See July 2021 Rating Decision-Codesheet. The assignment of a separate rating for pernicious anemia represents a complication of the treatment for NHL. See May 2021 VA Examination Hematologic and Lymphatic Conditions, including Leukemia Disability Benefits Questionnaire. As the May 2021 examiner indicated, the Veteran's anemia was caused by treatment for NHL. Id. Therefore, the rating for anemia is not a downstream issue that must be separately appealed, but rather is properly before the Board by virtue of the appeal for an increased rating for NHL. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Hamilton v. Brown, 4 Vet. App. 528, 541 (1993); Hudson v. Principi, 3 Vet. App. 467, 468 (1992). Accordingly, the Board will address entitlement to an increased rating for NHL since May 25, 2012, and for anemia since May 13, 2021. As discussed in the introduction, based on the facts found, entitlement to an increased rating for NHL from May 25, 2012 to May 12, 2021, is remanded. Diagnostic Code 7715 The Veteran was formerly rated under DCs 7310-7715, with 100 percent awarded August 21, 2008, and 10 percent from July 1, 2009. See July 2021 Rating Decision-Codesheet. Under DC 7715 for NHL, a 100 percent disability rating is warranted "when there is active disease, during a treatment phase, or with indolent and non-contiguous phase of low-grade NHL." See 38 C.F.R. § 4.117, DC 7715. Thus, DC 7715 provides for a 100 percent disability rating for active disease or during a treatment phase. See Huerta v. McDonough, 34 Vet. App. 76 (2021) (holding based on the location, and omission, of certain punctuation and conjunctions, that the plain language of a similarly drafted diagnostic code separated by commas and "or" only required one of the listed items for rating rather than all the items listed for assignment of the rating). DC 7310 Under DC 7310, stomach injuries are rated as adhesions of the peritoneum under DC 7301. Under DC 7301, the criteria for a higher rating of 30 percent is moderately severe; partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged periods of pain; and a 50 percent rating is for severe impairment from definite partial obstruction shown by X-ray with frequent and prolonged episodes of severe colic distension, nausea, or vomiting, following severe peritonitis, a ruptured appendix, a perforated ulcer, or an operation with drainage. VA recently revised 38 C.F.R. § 4.117, which removed Diagnostic Code 7700 and added Diagnostic Code 7722. See 83 Fed. Reg. 54,250 (Oct. 29, 2018). In cases where rating criteria are amended during the appeal, 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). DC 7700 (Prior to Oct. 29. 2018) Under the now-removed Diagnostic Code 7700, a noncompensable rating is assigned for pernicious anemia with hemoglobin at 10 grams per 100 milliliters or less, asymptomatic. A 10 percent rating is assigned for pernicious anemia with hemoglobin at 10 grams per 100 milliliters or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is assigned for pernicious anemia with hemoglobin at 8 grams per 100 milliliters or less with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is assigned for pernicious anemia with hemoglobin at 7 grams per 100 milliliters or less with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (110 to 120 beats per minute) or syncope (3 episodes in the last 6 months). Lastly, a 100 percent rating is assigned for pernicious anemia with hemoglobin at 5 grams per 100 milliliters or less with findings such as high output congestive heart failure or dyspnea at rest. DC 7722 (Effective Oct. 29, 2018) The Veteran has been assigned a 10 percent rating for pernicious anemia with Vitamin B12 deficiency, effective May 13, 2021, according to DC 7722. See 38 C.F.R. § 4.117. Under newly introduced DC 7722, a 10 percent rating is assigned if a veteran's pernicious anemia requires continuous treatment with Vitamin B12 injections, Vitamin B12 sublingual or high-dose oral tablets, or Vitamin B12 nasal spray or gel. A 100 percent rating is assigned for 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. A note indicated that a 100 percent evaluation for pernicious anemia and Vitamin B12 deficiency shall be assigned as of the date of the initial diagnosis requiring transfusion due to severe anemia or parenteral B12 therapy and shall continue with a mandatory VA examination six months following hospital discharge or cessation of parenteral B12 therapy. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this Chapter. Thereafter, evaluate at 10 percent and separately evaluate any residual effects of pernicious anemia, such as neurological involvement causing peripheral neuropathy, myelopathy, dementia, or related gastrointestinal residuals, under the most appropriate diagnostic code. See 38 C.F.R. § 4.117. "Parenteral" is defined as "not through the alimentary canal, but rather by injection through some other route, such as subcutaneous, intramuscular, intraorbital, intracapsular, intraspinal, intrasternal, or intravenous." Dorland's Illustrated Medical Dictionary, 1382 (32nd ed. 2012). Pertinent Facts and Analysis A. NHL VA treatment records from June 2009 show that the Veteran experienced evolving MALT lymphoma, and took Prevacid and Zantac for his symptoms. See Atlanta VA Medical Center records received December 2010. A May 2013 VA examination was afforded the Veteran; however, in January 2021 the Board found it was internally inconsistent. See January 2021 BVA Decision; see May 2013 VA Examination Hematologic and Lymphatic Conditions, Including Leukemia. At his March 2020 Board hearing the Veteran described symptoms of NHL to include loose bowels and diarrhea (for which he took prescription medication and over-the-counter medications for pain, and avoided foods that irritated his stomach). See March 2020 Hearing Transcript. He reported that he experienced bloating of the stomach, throwing up (or feeling as if he will throw up/nausea), and heartburn (described as feeling like he might have a heart attack from acid reflux and heartburn). Id. He also reported that he had lost weight, which he attributed to eating less due to stomach irritation, swelling, related burping (which embarrassed him and caused him to lack enjoyment when eating). Id. The Veteran was afforded a May 2021 VA examination in which he reported that since onset of NHL, the course of the condition stayed the same. See May 2021 VA Examination Hematologic and Lymphatic Conditions, including Leukemia Disability Benefits Questionnaire. His current symptoms were reportedly fatigue, tiredness, abdominal pains, nausea, and GERD symptoms treated with Vitamin B. Id. The examiner indicated that the cancer was active with watchful waiting without treatment currently, and there was no functional impact. Id. The NHL was not in a treatment phase, or indolent and non-contiguous phase of low-grade NHL. Id. Additionally, the Veteran was afforded a VA examination for his postoperative residuals to include stomach residuals due to NHL. See May 2021 VA Examination Stomach and Duodenal Conditions (Not Including GERD or Esophageal Disorders). The Veteran experienced four or more recurring episodes of symptoms due to his stomach or duodenum condition, lasting less than a day, with periodic abdominal pain, mild nausea occurring four or more times a year, and no incapacitating episodes per year, no related scars and no related complications. Id. The examiner corrected the diagnosis to postoperative residuals to include stomach residuals due to NHL. Id. B. Anemia In May 2021 the VA examiner identified the Veteran as having pernicious anemia secondary to the NHL with postoperative stomach injury, requiring continuous treatment with Vitamin B12 sublingual tablets. See May 2021 VA Examination Hematologic and Lymphatic Conditions, including Leukemia Disability Benefits Questionnaire. He took continuous medication in the form of B12 supplements. Id. CBC results showed hemoglobin of 15.2, hematocrit of 47, white blood cell count of 5.0, and platelets of 158. Id. Analysis Pre-Amendment (prior to 12/9/2018) As set forth, under the former version of diagnostic code 7715, a 100 percent rating is warranted during the treatment phase or when the condition is active. The May 2021 VA examiner indicated that NHL was an active disease, which he diagnosed as of 2021. See May 2021 VA Examination Hematologic and Lymphatic Conditions, including Leukemia Disability Benefits Questionnaire. As such, the evidence is at least in equipoise as to whether the Veteran's disease is active. Resolving reasonable doubt in his favor, an initial 100 percent rating is warranted for NHL from the date of examination, May 13, 2021. 38 C.F.R. § 4.3. This subsumes the DC 7310-7301 DCs because where a 100 percent rating for NHL is granted according to DC 7715, ratings for residuals need not be provided. Post-Amendment (since 12/9/2018) In the instant case, the Veteran has been awarded a 10 percent rating under the newly introduced Diagnostic Code 7722 for Pernicious anemia and Vitamin B12 deficiency anemia, as he requires Vitamin B12. The award was assigned secondary to the NHL as discussed above, effective May 13, 2021, which is not prior to the effective date of the revisions to 38 C.F.R. § 4.117. See Kuzma, 341 F.3d at 1328. In addressing why the Veteran is not entitled to the highest 100 percent rating under Diagnostic Code 7722 since May 13, 2021, the Board first notes that the Veteran's anemia has not required transfusion. Additionally, the Board finds no evidence that the Veteran's pernicious anemia caused symptoms related to central nervous impairment requiring parenteral B12 therapy. Rather, the May 2021 VA examiner indicated that the Veteran's anemia required continuous treatment with Vitamin B12 sublingual tablets. See May 2021 VA Examination Hematologic and Lymphatic Conditions, including Leukemia Disability Benefits Questionnaire. Accordingly, no greater rating than the 10 percent awarded since May 13, 2021, is available for the Veteran's anemia. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. At the March 2020 Board hearing the Veteran reported that his hearing was muddled, and he was having difficulty understanding. See March 2020 Hearing Transcript. His wife noticed that he had to turn the television louder. Id. In January 2021, the Board remanded the Veteran's bilateral hearing loss claim to obtain a VA opinion, specifically noting that the previous VA examiner recommended testing that was not completed. See January 2021 BVA Decision. However, upon review of the new examination, there are still issues with what the examiner reported. Specifically, the examiner indicated that the testing results were not reliable for non-organic reasons; however, this does not explain to the Board whether these non-organic reasons are inherent to the Veteran (for example, malingering), fault of the examiner, fault of the equipment, etcetera. See May 2021 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. As such, the Board finds that another remand is necessary to provide the Veteran with a VA audiologic examination to obtain reliable testing results of the Veteran's organic thresholds to determine the nature and etiology of his claimed hearing loss disability or if reliable testing results cannot be obtained, then the examiner must explain why that is so. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to a rating greater than 10 percent for NHL with postoperative residuals from May 25, 2012 to May 12, 2021 The Board remands the claim for a higher rating for NHL for the period from May 25, 2012 to May 12, 2021, in order to obtain a retrospective VA medical opinion that considers when the Veteran's NHL was in an active disease phase, treatment phase, or with indolent and non-contiguous phase of low-grade NHL. See Chotta v. Peake, 22 Vet. App. 20 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). The examiner must explain all opinions reached, and discuss the evidence of record to include medical and lay statements. 3. Entitlement to a TDIU due to NHL Further, as the matter of TDIU is inextricably intertwined with the increased rating claim being remanded, a remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Arrange for an audiological examination of the Veteran to ascertain the nature and etiology of his claimed bilateral hearing loss disability. The Veteran's record must be reviewed by the examiner in conjunction with the examination. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including noise exposure while in service, to include from scraping machines. The Board points out that the Veteran has reported that he experienced noticeable hearing loss since the late 1970s. See May 2021 VA Examination Hearing Loss and Tinnitus Disability Benefits Questionnaire. If the responses on audiometry remain inconsistent, and the testing is determined to be invalid, the examiner should indicate whether such is due to malingering, inability to understand directions, language difficulties, or inadequacies in the testing methodology (and if it is due to either of the latter two, indicate whether the problem can be rectified by any available testing methodology. If so, such should be arranged. All opinions must include rationale. 2. Obtain a medical opinion from an oncologist or other appropriate cancer specialist. The relevant facts and medical history should be made available to the specialist. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The specialist should provide the following opinions: (a) during what timeframe from May 25, 2012 to May 12, 2021, if any, was the Veteran's NHL in an active disease phase, treatment phase, or with indolent and non-contiguous phase of low-grade NHL? See Chotta v. Peake, 22 Vet. App. 20 (2008). (b) if the NHL was not active, then identify and discuss any residuals of the service-connected NHL. All opinions must include rationale. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 4. Adjudicate the issue of entitlement to a TDIU due to NHL since May 2012 after considering all the evidence. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.