Citation Nr: 21011363 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-36 061 DATE: March 1, 2021 ORDER For the rating period from September 11, 2006 to March 8, 2012, a 100 percent total disability rating for service-connected amyloidosis under Diagnostic Code 7715 is granted. FINDING OF FACT From September 11, 2006 to March 8, 2012, the service-connected amyloidosis was active. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, from September 11, 2006 to March 8, 2012, the criteria for a 100 percent total disability rating for the service connected amyloidosis have 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, 4.14, 4.21, 4.117, Diagnostic Code 7715 (2014 & 2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from February 1976 to September 1992, from August 1994 to July 1995, from July 1996 to June 1997, from October 1998 to March 1999, and from June 2000 to June 2002. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. At the outset, the Board will review the complicated procedural history of the instant matter. In a July 2008 rating decision, the RO granted service connection for cardiac amyloidosis with peripheral neuropathy of the hands and feet, effective March 24, 2005. An initial 30 percent disability rating was assigned under Diagnostic Code 7020, which contemplates cardiomyopathy. 38 C.F.R. § 4.104. In September 2011, the Veteran submitted a brief to VA arguing that the RO made an error in July 2008 when it rated the amyloidosis under Diagnostic Code 7020. Rather, the RO should have rated the amyloidosis as analogous to non-Hodgkin’s lymphoma, pursuant to Diagnostic Code 7715. The RO then granted a 100 percent (total) disability rating for the service connected amyloidosis, now rated as primary (AL) amyloidosis in a September 2013 rating decision. The effective date for the increased rating was March 9, 2012, the effective date of a new VA regulation that established Diagnostic Code 7717, which assigns a 100 percent total disability rating for primary amyloidosis. Subsequently, in July 2014, the Veteran filed a clear and unmistakable error (CUE) brief/notice of disagreement (NOD) again arguing that the RO erred in July 2008 when it rated the service-connected amyloidosis under Diagnostic Code 7020. Per the brief, the Veteran explained that, under VA policy/regulation, prior to March 9, 2012, amyloidosis was to be rated under the “built-up” Diagnostic Code 7799 7715. Based upon the Veteran’s filings, in August 2014, the RO issued a rating decision granting a 100 percent (total) disability rating for the service-connected amyloidosis for the rating period from March 24, 2005 through March 7, 2006, resumed the previously assigned 30 percent disability rating from March 8, 2006 through March 8, 2012, and then reinstated the 100 percent (total) disability rating previously awarded from March 9, 2012. Review of the August 2014 rating decision and corresponding August 2014 statement of the case (SOC) reflect that this increased rating grant was not based upon a finding of CUE in the July 2008 rating decision. Rather, it appears that the RO either 1) found that Veteran’s original March 24, 2005 service connection claim remained open, or 2) found that reconsideration of the July 2008 rating decision was warranted. In either event, during the course of this appeal, both the RO and the Board have treated this as an increased rating/higher initial rating claim since the issuance of the August 2014 rating decision. This matter has not been treated as a request for revision of the July 2008 rating decision due to CUE, which, the Board notes, is of greater benefit to the Veteran due to the lower evidentiary burden and ability for the Board to further develop evidence. As such, the Board will continue to treat the instant matter as a standard increased rating/higher initial rating claim. To do otherwise would result in substantial prejudicial harm to the Veteran and call into question the subsequently issued RO and Board decisions. Following the issuance of the August 2014 SOC, the Veteran perfected the appeal in October 2014. In a subsequently issued May 2018 decision, the Board 1) granted a 100 percent (total) disability rating under Diagnostic Code 7715 for the period from March 8, 2006 to September 10, 2006; 2) denied a disability rating in excess of 30 percent under Diagnostic Code 7020 for the period from September 11, 2006 through March 8, 2012; 3) denied an effective date earlier than March 9, 2012 for the grant of a 100 percent total disability rating under Diagnostic Code 7717; and 4) granted separate compensable 10 percent disability ratings for peripheral neuropathy of all four extremities as residuals of the service-connected amyloidosis for the period from September 11, 2006 through March 8, 2012. The Veteran appealed the May 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated August 2019, the Court granted a Joint Motion for Partial Remand (JMR). Per the JMR, the May 2018 decision was remanded back to the Board for reconsideration to the extent it 1) denied a 100 percent (total) disability rating under Diagnostic Code 7715 for the period from September 11, 2006 through March 8, 2012; and 2) denied a disability rating in excess of 30 percent under Diagnostic Code 7020. As the instant decision grants a 100 percent (total) disability rating for the service connected amyloidosis for the period from September 11, 2006 through March 8, 2012, which is a complete grant as to the remaining issue on appeal, the Board need not address most of the JMR arguments and findings of error at this time. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). In the August 2019 JMR, the parties directed that, on remand, the Board was to consider whether the Board’s extension of the 100 percent total disability rating to September 2006 was a finding of CUE warranting revision of the July 2008 rating decision. As discussed above, the Board has found that, at the time of the August 2014 rating decision, the RO apparently found either 1) that the July 2008 rating decision was non-final, or 2) that reconsideration of the July 2008 rating decision was warranted; therefore, at the time of its May 2018 decision, the entire evidentiary record was open before the Board. Under such evidentiary and procedural circumstances, it cannot be said that the Board’s grant of a 100 percent (total) disability rating under Diagnostic Code 7715 for the period from March 8, 2006 to September 10, 2006 constituted a finding of CUE that warranted revision of the July 2008 RO rating decision. 38 C.F.R. § 3.105. Upon the matter being returned to the Board, in March 2020 the Board remanded the issue on appeal for additional development. Again, as the instant decision grants a 100 percent (total) disability rating for the service-connected amyloidosis under Diagnostic Code 7715 for the rating period from September 11, 2006 through March 8, 2012, which is a complete grant as to the remaining issue on appeal, the Board need not address remand compliance at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in its March 2020 Remand the Board remanded the question of a disability rating in excess of 30 percent for the service-connected amyloidosis for the rating period from September 11, 2006 through March 8, 2012, pursuant to Diagnostic Code 7020, for extraschedular consideration under 38 C.F.R. § 3.321(b). The Board justified the remand on the basis that the Veteran had symptoms of edema that were not considered under Diagnostic Code 7020. As the instant decision grants a 100 percent total disability rating for the service- connected amyloidosis under Diagnostic Code 7715 for the rating period from September 11, 2006 through March 8, 2012, which is the highest schedular rating available at law and includes all the Veteran’s amyloidosis residuals, the question of extraschedular consideration under 38 C.F.R. § 3.321(b) has been rendered moot. Even if extraschedular consideration under 38 C.F.R. § 3.321(b) had not been rendered moot in the instant decision, the Board notes that such referral by the Board in March 2020 was inappropriate, as symptoms of edema as a residual of amyloidosis was considered by the schedular rating criteria during the period from September 11, 2006 through March 8, 2012. Indeed, following the Board’s March 2020 ordered development, the RO, in a July 2020 rating decision, granted separate compensable disability ratings of 10 percent for bilateral lower extremity venous stasis due to symptoms of edema under Diagnostic Code 7121 for the period from September 11, 2006 through March 8, 2012 – a schedular rating remedy. 38 C.F.R. § 4.104. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants a 100 percent (total) disability rating for the service-connected amyloidosis under Diagnostic Code 7715 for the rating period from September 11, 2006 through March 8, 2012, which is a complete grant as to the remaining issue on appeal, no further discussion of VA’s duties to notify and assist is necessary. Amyloidosis Disability Rating for the Period from September 11, 2006 to March 8, 2012 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. At the time of the August 2014 RO rating decision, pursuant to VA policy and regulation, service-connected AL amyloidosis, also known as primary amyloidosis, was rated by analogy under Diagnostic Code 7715 as non-Hodgkin’s lymphoma. At that time, Diagnostic Code 7715 awarded a 100 percent total disability rating for non-Hodgkin’s lymphoma with active disease or during a treatment phase. The accompanying Note stated that the 100 percent rating would continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating would be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination would be subject to the provisions of §3.105(e) of this chapter. If there had been no local recurrence or metastasis, VA was to rate on residuals. 38 C.F.R. § 4.117. As discussed above, effective March 9, 2012, the regulations were updated to include Diagnostic Code 7717. Under Diagnostic Code 7717, service connected primary amyloidosis was to always be rated as 100 percent disabling. In other words, unlike under Diagnostic Code 7715, amyloidosis will never be rated solely based upon residuals of the disease following cessation of treatment. Presumably, this is because, unlike non-Hodgkin’s lymphoma, AL amyloidosis/primary amyloidosis itself has no cure (although if the amyloidosis is caused by an underlying condition, treating that condition may help). See Amyloidosis, https://www.mayoclinic.org/diseases-conditions/amyloidosis/diagnosis-treatment/drc-20353183 (last visited February 25, 2021). In March 2020, the Board remanded the instant matter for a retrospective opinion concerning the severity of the amyloidosis during the period from September 11, 2006 to March 8, 2012. The retrospective opinion was received in March 2020. Dispositive to the instant matter, per the March 2020 retrospective opinion, the Veteran underwent a bone marrow transplant to treat the amyloidosis in February 2006. Despite some improvement during the period from 2006 through 2014, per a January 2015 treatment note, a primary care provider specifically found that the bone marrow transplant “never induced complete remission” of the amyloidosis. In other words, the primary care physician found that, despite the Veteran’s increase in functioning, the amyloidosis remained active during the period from September 11, 2006 to March 8, 2012, which is consistent with the medical literature discussed above. The Board notes that the primary care physician’s finding was the last bit of information provided in the retrospective opinion, and the VA examiner did not disagree with the finding that the bone marrow transplant failed to put the amyloidosis in remission; therefore, it appears that the VA examiner agreed that the amyloidosis remained active during the relevant rating period on appeal. In sum, a review of the evidence of record reflects that, following a February 2006 bone marrow transplant, while symptoms of amyloidosis (a disease for which there is no cure) improved, the disease never went into remission and remained active during the relevant rating period on appeal. During the rating period from September 11, 2006 to March 8, 2012, amyloidosis was rated, by analogy, under Diagnostic Code 7715. Pursuant to Diagnostic Code 7715, a 100 percent total disability rating was to remain in effect until 1) the non-Hodgkin’s lymphoma became inactive; 2) treatment of the disease was completed; and 3) a VA examination was performed to determine the appropriate disability rating based upon the disease residuals. Here, the report from a March 2020 VA retrospective opinion reflects that the amyloidosis remained active from September 11, 2006 to March 8, 2012; therefore, pursuant to Diagnostic Code 7715 as it was then in effect, the 100 percent (total) disability rating should have remained. For the above reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that, from September 11, 2006 to March 8, 2012, the service-connected amyloidosis was active, to warrant a 100 percent disability rating under Diagnostic Code 7715. 38 C.F.R. §§ 4.3, 4.7, 4.117. During the period from September 11, 2006 to March 8, 2012, the amyloidosis was rated based upon residuals, to include cardiac residuals under Diagnostic Code 7020, bilateral upper extremity peripheral neuropathy under Diagnostic Code 8516, bilateral lower extremity peripheral neuropathy under Diagnostic Code 8520, and bilateral lower extremity venous stasis under Diagnostic Code 7121. These residuals are to be rated alongside the 100 percent disability rating under Diagnostic Code 7715, as to allow the Veteran to keep these separate compensable ratings would result in improper pyramiding. 38 C.F.R. § 4.14. Finally, as discussed in the introduction, because the Veteran is being awarded the highest schedular disability rating available at law for the service-connected amyloidosis under the rating schedule in effect from September 11, 2006 to March 8, 2012, the Board need not further address the question of an extraschedular rating under 38 C.F.R. § 3.321(b). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.