Citation Nr: 21009850 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-07 036 DATE: February 23, 2021 ORDER An effective date of July 16, 2008, but no earlier, for a 100 percent rating for acute myelogenous leukemia (leukemia) is granted. FINDINGS OF FACT 1. The probative medical evidence of record first shows an active diagnosis for acute myelogenous leukemia on July 16, 2008. 2. Prior to July 16, 2008, acute myelogenous leukemia was in remission; neither anemia with hemoglobin measured at 10gm/100ml or less nor aplastic anemia requiring continuous medication for control has been shown. CONCLUSION OF LAW The criteria for an earlier effective date of July 16, 2008, but no earlier, for acute myelogenous leukemia have been met. 38 U.S.C. § 1110; 5103A, 5110(a); 38 C.F.R. § 3.1(p), 3.155(a), 3.303(d), 3.307, 3.309, 3.114, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1966 to May 1968. He died in July 2009. The appellant is the Veteran’s widow. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2008 and June 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Board denied entitlement to an initial compensable evaluation for acute myelogenous leukemia prior to December 31, 2008. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 memorandum decision, the Court vacated the Board’s December 2016 decision and remanded the matter for further development and readjudication. This case was previously before the Board in October 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In May 2014, the appellant testified at a Board hearing before a Veterans Law Judge (VLJ) that is no longer available to participate in the Veteran’s appeal. 38 U.S.C. § 7107; 38 C.F.R. § 20.106. A transcript of that hearing has been associated with the record. In December 2020, the appellant was notified that the VLJ was no longer available to participate in her appeal and that she had a right to a new hearing. The appellant responded later that month electing not to appear at another Board hearing and for her case to be considered based on the evidence of record. Entitlement to an effective date prior to December 31, 2008 for acute myelogenous leukemia. The appellant contends that the Veteran’s leukemia warranted a compensable rating from February 27, 2003. At a May 2014 Board hearing, the appellant and her attorney stated that the Veteran had chronic fatigue in the years following his initial diagnosis and 1995 bone marrow transplant. As to claims for an increase in disability rating specifically, the effective date is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(2). Here, in a September 2008 decision, the Board granted service connection for leukemia. A December 2008 rating decision implemented the Board’s grant of service connection, and assigned an initial noncompensable rating, effective February 27, 2003. In a June 2013 rating decision, the RO awarded a 100 percent evaluation for leukemia, effective from December 31, 2008. The Veteran’s acute myelogenous leukemia is rated under 38 C.F.R. § 4.117, Diagnostic Code (DC) 7703, for leukemia. Leukemia is rated as 100 percent disabling with active disease or during a treatment phase. Otherwise, it is rated as anemia (DC 7700) or aplastic anemia (DC 7716), whichever would result in a greater benefit. Under DC 7700, a noncompensable rating is warranted for anemia when the hemoglobin level is 10gm/100ml or less and the disorder is asymptomatic. A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. 38 C.F.R. § 4.117, DC 7700. Under DC 7716, aplastic anemia requiring continuous medication for control is rated 10 percent disabling. Anemia requiring transfusion of platelets or red cells, on average, at least once per 12-month period; or infections recurring, on average, at least once per 12-month period warrants a 30 percent rating. Anemia requiring transfusion of platelets or red cells, on average, at least once every three months per 12-month period; or infections recurring, on average, at least once every three months per 12-month period; or using continuous therapy with immunosuppressive agent or newer platelet stimulating factors warrants a 60 percent rating, and anemia requiring peripheral blood or bone marrow stem cell transplant; or requiring transfusion of platelets or red cells, on average, at least once every six weeks per 12-month period; or infections recurring, on average, at least once every six weeks per 12-month period warrants a 100 percent rating. 38 C.F.R. § 4.117, DC 7716. The Veteran’s private treatment records show that during the 1990s, he was treated for anemia, leukopenia, myelodysplastic syndrome, and acute myelogenous leukemia. In August 1996, he underwent a bone marrow transplant. Thereafter, his leukemia went into remission. In March 2002, the Veteran was noted to have no signs or symptoms of leukemia and had maintained a normal blood count since his bone marrow transplant, and in December 2002, his hemoglobin level was 15.1. In April 2003, he was noted to have a history of myelodysplastic syndrome which was stable. His hemoglobin level was 14.9. It was noted that the Veteran “continued to remain well” with no symptoms of graft-versus-host disease. The Veteran’s hemoglobin level was 14.7 in August 2003, and the physician noted he was stable and generally doing good. In January 2004, the Veteran’s hemoglobin level was 14.5. In March 2004, it was noted that the Veteran was doing well, and his leukemia was still in remission. The record notes no hospitalizations, medical problems, or medications. The Veteran’s hemoglobin levels throughout 2004 were 13.8, 14.5, 14.6, 15.1, and 16.7. In 2005 studies, the Veteran’s hemoglobin levels were 13.3 and 15.3, and the Veteran’s physician twice opined that the Veteran’s blood count was normal. At an April 2005 Board hearing, the Veteran stated that he had frequent colds and lung infections that were due either to his gunshot wound residuals or possibly due to his leukemia. In 2007, hemoglobin levels were 14.5 and 14.8. The February 2008 hemoglobin level was 15, and in July 2008, it was 14.5. In March 2008, the Veteran presented with cough, fever, chills, and muscle aches. The examiner noted a history of leukemia. Examination revealed influenza. On July 15, 2008, laboratory studies showed that the Veteran’s hemoglobin level was 14.5. In November 2008, laboratory studies showed that the Veteran’s hemoglobin level was 13.0. On December 31, 2008, a private examination noted that the Veteran had symptoms of progressive fatigue and occasional low-grade fever during the last several weeks. Laboratory studies revealed abnormal white cells in the blood and mild leukopenia. Studies also showed hemoglobin of 10.1 and distinctly abnormal white blood cell differential. Laboratory studies showed hemoglobin of 10.1 and distinctly abnormal white blood cell differential. The private physician wrote that this indicated a recurrence of myelodysplasia/acute myelogenous leukemia. It was recommended that the Veteran receive a second bone marrow transplant. A May 2009 letter from the Veteran’s spouse stated that following the Veteran’s bone marrow transplant in 1995, he never regained his strength or muscle tone/mass, and had chronic fatigue. In a July 2014 brief, the appellant’s attorney stated that the Veteran had anemia in July 2004 and March 18, 2005, as well as other blood abnormalities in his complete blood count. The attorney wrote that the appellant testified that the Veteran had suffered from chronic fatigue, weakness, shortness of breath, recurrent infections, dizziness, and insomnia since 1995. In a September 2020 VA medical opinion, the examining physician thoroughly reviewed and discussed the Veteran’s medical history. The examiner noted that the November 2008 laboratory studies showed a mild neutropenia absent immature cells. The examiner concluded that the Veteran’s leukemia began to relapse in the fall of 2008 and the last day the leukemia remained in remission was July 15, 2008. The examiner indicated that this was based solely upon serial hemoglobin values that arguably could have correlated with enough of a clinical change to have warranted contacting the Veteran’s hematologist/oncologist. The examiner further indicated that no other potential manifestation of the Veteran’s leukemia emerged until the relapse had been diagnosed. Based on a review of the record, the Board finds that a 100 percent rating under DC 7703 is warranted for the Veteran’s leukemia from July 16, 2008, the first date the VA oncologist indicated the Veteran’s leukemia was no longer in remission. There is no other medical evidence of record which confirms an active diagnosis of that disability prior to that date. Both the VA examination report, as well as private and VA treatment records clearly indicate that the Veteran’s leukemia was in remission prior to July 16, 2008. The appellant has not presented any evidence to the contrary. Looking at DC 7716, the Board finds that a compensable rating is not warranted during this period. A review of the evidence of record does not show a diagnosis of aplastic anemia requiring continuous medication for control. The Veteran has also not alleged that he has aplastic anemia that requires continuous medication for control. For the period on appeal, no private or VA medical records have shown that he has aplastic anemia that requires medication. The evidence also shows that a compensable rating prior to July 16, 2008 under DC 7700 is not warranted. The Veteran has not been diagnosed with anemia, hypochromic-microcytic and megaloblastic anemia with hemoglobin 10 gm/100 ml or less. He has no diagnosis of anemia prior to July 16, 2008, and the Veteran’s hemoglobin levels, which were tested regularly throughout the appeal period, were not found to be 10 gm/ml or less at any time during the appeal period. His bloodwork showed hemoglobin levels to be no less than 13.3 gm/100 ml. Therefore, as the Veteran has not had hemoglobin levels of 10 gm/100 ml or less, the existence of the clinical findings is insufficient to more nearly approximate the criteria for a compensable rating under DC 7700. The Board acknowledges the statements of the Veteran, the appellant, and the appellant’s attorney. Although they are competent to report symptoms because this requires only personal knowledge, they are not competent to opine as to the date in which the disease was active or in remission or to identify a specific level of this disability according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that an opinion concerning the nature and extent of his leukemia, including whether it was active or in remission, is a medically complex question that can only be answered by a medical professional with the appropriate training and knowledge. In sum, the Board finds that an earlier effective date of July 16, 2008, but no earlier, is granted for service-connected acute myelogenous leukemia. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.