Citation Nr: 21073016 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 20-19 530 DATE: December 7, 2021 ORDER Entitlement to a compensable rating for non-Hodgkin's lymphoma (inactive) with anemia, prior to January 6, 2021, and in excess of 10 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to January 6, 2021, the Veteran's non-Hodgkin's lymphoma (inactive) with anemia was not manifested by hemoglobin levels of 10 gm/100 ml or less and was asymptomatic or requiring treatment only by dietary modification. 2. From January 6, 2021, the Veteran's non-Hodgkin's lymphoma (inactive) with anemia required continuous treatment with oral supplementation, but did not require intravenous iron infusions four or more times per 12-month period. The Veteran did not have a hemoglobin level of 8 gm/100ml or less. CONCLUSIONS OF LAW 1. Prior to January 6, 2021, the criteria for a compensable disability rating for non-Hodgkin's lymphoma (inactive) with anemia 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 Code 7700 (2018), Diagnostic Code 7720. 2. From January 6, 2021, the criteria for a rating in excess of 10 percent for non-Hodgkin's lymphoma (inactive) with anemia have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.21,4.7, 4.117 Diagnostic Code 7700 (2018), Diagnostic Code 7720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1964 to September 1964. This matter is on appeal to the Bord of Veterans' Appeals (Board) from the April 2017 rating decision of the Agency of Original Jurisdiction (AOJ) by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for non-Hodgkin's lymphoma (inactive) with anemia and assigned a zero percent rating, effective February 16, 2017. In a May 2021 rating decision, the AOJ increased the Veteran's assigned rating from zero percent to 10 percent, effective January 6, 2021. The Board remanded this case in September 2020, March 2021, and August 2021. Most recently, in August 2021, the Board remanded the case for additional development. Specifically, in the August 2021 remand the Board required the RO to obtain an addendum opinion as to whether the Veteran's erectile dysfunction, constipation, and urine/bowel leakage conditions are at least as likely as not proximately due to his service-connected non-Hodgkin's lymphoma (inactive) with anemia disability or aggravated beyond their natural progression by his non-Hodgkin's lymphoma (inactive) with anemia disability. The examiner was also to address whether treatment records received after the April 2021 VA examination contained any information that resulted in alteration of the findings or conclusions contained in the April 2021 examination report. Addendum opinions were obtained in October 2021. The Board finds that the RO substantially complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating for non-Hodgkin's lymphoma (inactive) with anemia The Veteran seeks an increased rating for non-Hodgkin's lymphoma (inactive) with anemia. The Veteran filed a claim for service connection for Non-Hodgkin's lymphoma in February 2017. He was granted service connection and given a noncompensable rating for non-Hodgkin's lymphoma (inactive) with anemia beginning February 16, 2017, under diagnostic code 7715-7700 and then given a 10 percent rating beginning on January 6, 2021 under DC 7715-7720. During a June 2018 regional office hearing, the Veteran contended he had many more residuals from his Non-Hodgkin's lymphoma other than anemia. He stated he has been constipated since having chemotherapy. Hyperlipidemia, hyponatremia, dizziness, Vitamin D deficiency, poor balance, mild cognitive impairment, memory issues, difficulty with balance and instability, and chronic fatigue were also discussed. In the April 2020 VA Form 9, the Veteran's representative indicated the Veteran incurred over $100,000 in private medical treatment expenses for his cancer for the period of December 5, 1995 to August 16, 2017. He argued the Veteran is entitled to a temporary 100 percent rating for the period from diagnosis until six months after the end of active treatment. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. During the appeal period, the regulations governing the hemic and lymphatic systems, including the criteria for rating anemia, were revised. 83 Fed. Reg. 54254 (Oct. 29, 2018) (effective Dec. 9, 2018). When regulations are revised during an appeal, the Board is required to consider the claim under both the former and revised schedular criteria and to apply the more favorable regulation. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application (which it does not here). See VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will consider the claim under the former rating criteria for the entire appeal period, and the new criteria from the effective date of the revisions. The former and new criteria are explained below. Prior to December 9, 2018, Diagnostic Code 7700 provided: a zero percent rating for a hemoglobin level of 10gm/100ml or less with an asymptomatic condition; a 10 percent rating for a hemoglobin level of 10 gm/100ml or less with findings such as weakness, easy fatigability, or headaches; a 30 percent rating for a hemoglobin level of 8 gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath; a 70 percent rating for a hemoglobin level of 7 gm/100 ml 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); and a 100 percent rating for a hemoglobin level of 5 gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117, Diagnostic Code 7700 (2018). The Veteran's disability is currently rated at zero percent disabling under the former criteria, prior to January 6, 2021. As of December 9, 2018, Diagnostic Code 7700 is removed, and anemia is rated under Diagnostic Codes 7720-7723 for the four major types of anemia that are neither hereditary nor secondary. See 83 Fed. Reg. 54254 (Oct. 29, 2018). Under Diagnostic Code 7720, for iron deficiency anemia: a zero percent rating is warranted for anemia when it is asymptomatic or requiring treatment only by dietary modification; a 10 percent rating is warranted for 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; a 30 percent rating is warranted for iron deficiency anemia requiring intravenous iron infusions 4 or more times per 12-month period. 38 C.F.R. § 4.117, Diagnostic Code 7720. The Board finds that the Veteran's iron deficiency anemia does not warrant a higher rating under either rating criteria. In a February 2017 disability benefits questionnaire, it was noted that the Veteran had anemia. It was unknown whether it was caused by treatment for another hematologic or lymphatic condition. With respect to other findings, signs, and symptoms due to hematologic or lymphatic disorders or to treatment for a hematologic or lymphatic disorder, light headedness was noted as rare. Syncope was noted as a symptom, but it was unknown whether it was related to treatments and it was likely due to hyponatremia. A hemoglobin level of 11.2 gm/dL from January 18, 2017, was provided. A VA examiner provided a disability benefits questionnaire in April 2017 based on a review of the available records and a telephone interview with the Veteran. At that time, his hemoglobin level was 11.2gm/100ml. Continuous medication was not required for control of the hematologic or lymphatic condition. It was noted the condition was in remission. It was noted the Veteran had anemia caused by treatment for another hematologic or lymphatic condition, but the condition causing the secondary anemia was unknown. No other findings, signs, or symptoms due to a hematologic or lymphatic disorder or to treatment for a hematologic or lymphatic disorder were noted. The examiner indicated the Veteran's hematologic or lymphatic condition did not impact the Veteran's ability to work. The remarks indicated the Veteran wanted compensation for thousands of dollars he spent on treatment for his condition in 2001. A blood test from July 2018 revealed a hemoglobin level of 11.7g/dL. Another VA disability benefits questionnaire was completed in January 2021 based on a review of the records and a telephone interview with the Veteran and his wife. At that time, the examiner indicated a diagnosis of iron deficiency anemia diagnosed in 1995. It was noted the Veteran had been seen by a nutritionist to help him pick foods higher in iron. His wife indicted he was doing well getting iron fortified foods for the anemia. His wife relayed his list of medications and supplements, including a multivitamin with iron, taken daily. Over the last ten years, there were two times when he required iron infusion. He had not had any in a few years. More recent labs in Fall 2000 were good according to his primary care physician. The examiner noted continuous medication was required for control of the Veteran's hematologic or lymphatic condition, specifically the multivitamin with iron taken daily. He noted the Veteran's condition was in remission. He indicated the Veteran's iron deficiency anemia required treatment only by dietary modification. Another disability benefits questionnaire was completed in April 2021 by a VA examiner, based on the acceptable clinical evidence (ACE) method. At that time, the examiner indicated continuous medication was required to control the Veteran's hematologic or lymphatic condition, specifically an iron supplement. It was noted the Veteran's condition was in remission, his treatment was completed, and he was currently in watchful waiting status. The examiner indicated the Veteran required continuous treatment with oral supplementation for his iron deficiency anemia. The Veteran's hemoglobin level was noted as 11.6. The examiner indicated the Veteran's condition did not impact his ability to work. An in-person VA examination was held in October 2021. At that time, the examiner indicated the Veteran's treatment for non-Hodgkin's lymphoma was resolved and treatment was completed in 2001. It was noted continuous medication was not required for control of a hematologic or lymphatic condition, including anemia or thrombocytopenia caused by treatment for a hematologic or lymphatic condition. It was noted the Veteran's anemia was caused by non-Hodgkin's lymphoma. The Veteran's iron deficiency anemia required continuous treatment with oral supplementation. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to the non-Hodgkins lymphoma. The Veteran's hemoglobin level was noted as 11.6gm/100ml, with testing from May 2021. The examiner noted the Veteran's hematologic of lymphatic condition did not impact the Veteran's ability to work. The Veteran underwent VA examinations for rectum and anus conditions in October 2021 along with urinary tract conditions, intestinal conditions, and male reproductive organ conditions. With respect to rectum and anus conditions, it was noted the Veteran developed rectal incontinence after a radical prostatectomy, but his rectal incontinence was resolved. It was specified he had no current symptoms. His examination was normal. Similarly, with respect to his urine leakage condition, it was noted the Veteran's urinary incontinence had resolved and that he had an overactive bladder due to radical prostatectomy. The Veteran had daytime voiding interval between two and three hours, and nighttime awakening to void two times. It was noted the Veteran's condition did not impact his ability to work. With respect to intestinal conditions, it was noted the Veteran started having frequent constipation issues after his radical prostatectomy. This condition had stayed the same since onset. Continuous medication was required to control his intestinal condition. With respect to erectile dysfunction, the Veteran started having difficulty with penile erection after having radical prostatectomy for treatment of prostate cancer. The condition had progressed/worsened since onset. It was noted the etiology of the erectile dysfunction was unknown. The condition did not impact the Veteran's ability to work. The October 2021 VA examiner found that erectile dysfunction, constipation, urine leakage, and bowel leakage are less likely than not proximately due to or the result of the Veteran's service-connected non-Hodgkin's lymphoma. He explained that non-Hodgkin's lymphoma usually presents as painless, localized, or generalized enlargement of lymph nodes with or without hepatosplenomegaly and not infrequently as an abdominal mass. Literature search failed to show connection between non-Hodgkin's lymphoma and bowel leakage, urine leakage, constipation, and/or erectile dysfunction. The October 2021 VA examiner also found that the Veteran's claimed conditions were not at least as likely as not aggravated beyond their natural progression by non-Hodgkin's lymphoma. He explained medical literature failed to show connection between non-Hodgkin's lymphoma and claimed conditions: erectile dysfunction, constipation, urine leakage, and bowel leakage. The preponderance of the evidence does not reflect a higher rating is warranted. With respect to anemia, at no point during the period on appeal does the record reflect the Veteran's hemoglobin level was 10 gm/100 ml or less. During the period on appeal, the first mention of the Veteran's need for continuous treatment with oral supplementation was during the January 2021 VA examination. At that time, the examiner still found that the Veteran's iron deficiency anemia required treatment only by dietary modification. In light of the record as a whole, the Board finds that a compensable rating prior to January 6, 2021, and a rating in excess of 10 percent thereafter, are not warranted for anemia. Nor does the record reflect the Veteran is suffering other symptoms or residuals of his non Hodgkins lymphoma. While a February 2017 disability benefits questionnaire indicates the Veteran suffered from rare lightheadedness, it is unclear how this clinician determined this was caused by the Veteran's non-Hodgkin's lymphoma and whether she examined and/or spoke to the Veteran. None of the subsequent four VA disability benefits questionnaires mention lightheadedness or that the Veteran was suffering from any other symptoms or residuals from his resolved non-Hodgkin's lymphoma. The February 2017 clinician also lists syncope, but indicates it is unknown if this is related to treatments and is likely due to hyponatremia. Similarly, other DBQs do not mention this symptom. With respect to erectile dysfunction, urinary leakage, bowel leakage, and constipation, the record does not reflect these are symptoms or residuals of non-Hodgkins lymphoma or that they were aggravated beyond their natural progression by non-Hodgkins lymphoma. (Continued on the next page) While the Veteran is competent to describe his symptoms, he is not competent to attribute symptoms that were discussed at the time of the RO hearing to his non Hodgkins lymphoma. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinions of the VA examiners. Therefore, a higher rating must be denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.