Citation Nr: 21021103 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-30 866 DATE: April 9, 2021 ORDER Entitlement to service connection of a bowel condition is dismissed. Entitlement to service connection of chronic obstructive pulmonary disease (COPD) is dismissed. Entitlement to service connection of sleep disturbance (claimed as fatigue and night sweats) is dismissed. The rating reduction for service-connected non-Hodgkin’s lymphoma from 100 percent to noncompensable was proper. Entitlement to a separate rating for a bowel condition, as a residual of non-Hodgkin's lymphoma, is denied. Entitlement to a separate rating for COPD, as a residual of non-Hodgkin's lymphoma, is denied. Entitlement to a separate rating for sleep disturbances (described as fatigue and night sweats), as a residual of non-Hodgkin's lymphoma, is denied. Entitlement to service connection of kidney cancer is granted. FINDINGS OF FACT 1. The Board, in its December 2019 decision and remand, incorrectly characterized the question of residual ratings for bowel issues, COPD, and sleep disturbances as residuals of non-Hodgkin’s lymphoma, as service connection claims secondary to that disability. 2. The Veteran’s non-Hodgkin’s lymphoma has been in remission since 2008 and is not subject to active treatment. 3. The Veteran’s bowel condition is not a residual of his non-Hodgkin’s lymphoma. 4. The Veteran’s COPD is not a residual of his non-Hodgkin’s lymphoma. 5. The Veteran’s sleep disturbance is not a residual of his non-Hodgkin’s lymphoma. 6. The Veteran’s kidney cancer is at least as likely than not related to his in-service herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for a bowel condition, COPD, and sleep disturbance as secondary to non-Hodgkin’s lymphoma have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The rating reduction for service-connected non-Hodgkin’s lymphoma from 100 percent to noncompensable was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.7, 4.117, Diagnostic Code (DC) 7715. 3. The criteria for a separate rating for a bowel condition, as a residual of non-Hodgkin's lymphoma, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.7, 4.117, Diagnostic Code (DC) 7715. 4. The criteria for a separate rating for COPD, as a residual of non-Hodgkin's lymphoma, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.7, 4.117, Diagnostic Code (DC) 7715. 5. The criteria for a separate rating for a sleep disturbance, as a residual of non-Hodgkin’s lymphoma, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.7, 4.117, Diagnostic Code (DC) 7715. 6. The criteria for service connection for kidney cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March and June 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal came before the Board in December 2019. At that time, among other things, it found the rating reduction for non-Hodgkin’s lymphoma to be proper, denied service connection of a bowel condition, and remanded claims of service connection for kidney cancer, sleep disturbances, and COPD. The Veteran appealed the Board’s conclusions regarding the rating for non-Hodgkin’s lymphoma and service connection of a bowel condition to the Court of Appeals for Veterans Claim (Court), and in September 2020, the Court granted a joint motion for partial remand (JMPR), which remanded those issues to the Board for further appellate review. Also returned to the Board at this time are the issues pertaining to kidney cancer, sleep disturbances, and COPD. In September 2019, the Veteran testified before the undersigned Veterans Law Judge at a hearing held via live videoconference. A transcript of that hearing is of record. Dismissal of Claims 1. Entitlement to service connection of a bowel condition, COPD and sleep disturbance (claimed as fatigue and night sweats) As noted above, this appeal previously came before the Board in December 2019, for the issue of whether the rating reduction for non-Hodgkin’s lymphoma was proper, and service connection of kidney cancer. However, because the rating criteria for non-Hodgkin’s lymphoma requires the Board to consider ratings for any residuals of the disease, and because during the pendency of the reduction appeal, the RO issued a rating decision which addressed service connection of multiple residuals of non-Hodgkin’s lymphoma, the Board took jurisdiction of the issues of service connection of, among other things, a bowel condition, sleep disturbances, and COPD. The bowel condition was denied by the Board, and the sleep disturbance and COPD questions were remanded for further development. The Board also took jurisdiction of the question of service connection of bilateral lower extremity peripheral neuropathy and pancreatitis, as secondary residuals of non-Hodgkin’s lymphoma, which were granted. The Veteran subsequently appealed the rating reduction and denial of service connection of a bowel condition to the Court. In September 2020 the Court issued a JMPR which remanded those two issues to the Board. Specifically, it objected to the Board’s characterization of the bowel condition issue as a separate issue of service connection rather than as a part of the rating for non-Hodgkin’s lymphoma. It is noted that there was no objection lodged with the Board taking jurisdiction over the claims which were granted (peripheral neuropathy and pancreatitis), or remanded (COPD and sleep disturbances). Although the ultimate outcome would be the same, upon review of the rating criteria for non-Hodgkin’s lymphoma, the Board agrees with the parties that it should not have taken jurisdiction over those issues as service-connection claims, but rather should have adjudicated whether separate ratings are warranted as part of the non-Hodgkins lymphoma rating claim. As such, the Board will dismiss the service-connection claims for a bowel disability, sleep disturbances, and COPD, and will address the question of separate ratings based on those symptoms as residuals, below. Rating Reduction 2. Whether the rating reduction for service-connected non-Hodgkin's lymphoma from 100 percent to noncompensable was proper The March 2014 rating decision on appeal proposed to reduce the Veteran’s rating for non-Hodgkin’s lymphoma from 100 percent to noncompensable. That reduction was confirmed in one of the June 2014 rating decisions now on appeal. The Veteran asserts that his rating should be higher than noncompensable. For the reasons addressed below, the Board finds that the reduction for non-Hodgkin’s lymphoma itself was proper, but that the Veteran should be evaluated separately for other residuals of that disability. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal in this matter, entitlement to compensation has already been established, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). “Where there is a question as to which of two evaluations shall be applied, 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 the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). As an initial matter, the Board has previously found that the RO provided adequate notice of the reduction, and therefore the reduction itself complied with the due process requirements necessary for the reduction. 38 C.F.R. § 3.105(e). The parties have not objected to this conclusion, and the Board will not disturb it. This issue was previously denied by the Board in December 2019. The Veteran appealed that denial and in September 2020, the Court granted a JMPR which returned the matter to the Board. Specifically, the parties agreed that the Board need discuss the holding in Brown v. Brown, supra, as well as 38 C.F.R. § 3.344(a). 38 C.F.R. § 3.344(a) provides that if a disability evaluation has continued for a period of five or more years, it cannot be reduced without evidence of sustained material improvement under the ordinary conditions of life as shown by full and complete examinations. Likewise, Brown holds that a reduction in disability evaluation is warranted if the evidence shows “that an improvement in disability has actually occurred,” and that the “improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” See Brown v. Brown, 5 Vet. App. 413, 421 (1993). In response to the arguments raised by the JMPR, the Board finds that 38 C.F.R. § 3.344(a) and Brown do not technically apply in this matter. Specifically, unlike the broad, general applicability that this section has to all diagnostic codes, the diagnostic code specifically addressing non-Hodgkin’s lymphoma, 38 C.F.R. § 4.117, DC 7715, sets forth in detail the procedure to be followed when assigning a 100 percent rating. Specifically, the 100 percent rating shall 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 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 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, the disability should be rated based on the residuals of the disease. Id, Note 1. In essence, the rating criteria for non-Hodgkin’s lymphoma explicitly allows for a reduction in rating, but moreover, that rating reduction is not based on any actual improvement, as is anticipated by 38 C.F.R. § 3.344(a), but rather is based on cessation of treatment. Indeed, the rating reduction which was effectuated by the RO in the 2014 did not address actual improvement, but rather addressed the fact that the Veteran’s lymphoma was in remission and he was no longer subject to active treatment for that disability. In the end, while 38 C.F.R. § 3.344(a) provides general guidance for reductions based on improvement of symptoms, such guidelines are effectively preempted by the more specific criteria set forth in DC 7715. See Roy v. Brown, 5 Vet. App. 554, 556-57 (1993) (choosing more specific regulation over more general regulation). As to the merits of the issue, according to a full and complete examination conducted in March 2014, the Veteran was initially diagnosed with non-Hodgkin’s lymphoma about 2005, and had completed chemotherapy no later than 2008, when he went into remission. Periodic reevaluations since that time had not found his disease to be active, and the Veteran admitted in his hearing before the undersigned that he did not suffer from acting non-Hodgkin’s lymphoma since the time he went into remission. The Veteran’s disability had gone into remission between 2007 and 2008, and therefore, it was no longer considered an active disease. Neither is there any evidence of record of active treatment for non-Hodgkin’s lymphoma itself. As such, the condition had shown real material improvement from the time of his 100 percent rating, and the reduction was proper. In light of the above, the Board continues to finds that the rating reduction for lymphoma was proper and a noncompensable rating for lymphoma itself should be assigned. The Board will address the question of ratings for residuals of lymphoma below. In reaching this conclusion, the Board notes that it has addressed the issue of service connection of multiple residuals of no-Hodgkins lymphoma below, and those issues, as granted, will be rated separately as residuals of the now inactive disease. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to a separate rating for a bowel condition, COPD, a sleep disorder, or any other disorder as residuals of non-Hodgkin's lymphoma, Having found that the reduction from 100 percent for Non-Hodgkin’s lymphoma was proper, the Board must then consider whether any compensable ratings are warranted as residual to the underlying disability. However, the Board finds that separate ratings are not warranted. As an initial matter, the Board previously granted service connection of right and left lower extremity peripheral neuropathy and pancreatitis, as residuals of non-Hodgkin’s lymphoma, and the RO has assigned ratings for those disabilities, which the Veteran has not contested. Therefore, the Board will not address those ratings in this decision. With regard his bowel disorder, the Veteran was afforded a VA examination in June 2015. At that time, he was diagnosed with diverticulosis and constipation. The examiner also noted a prior episode of gallstone pancreatitis in March 2006, while he was undergoing treatment for non-Hodgkin’s lymphoma, although the examiner concluded that the incident resolved without surgery or other intervention. The examiner noted that the Veteran had brought several articles which linked digestive issues as potential side effects of the type of chemotherapy he used to treat his lymphoma. The examiner then stated that based on the medical evidence, clinical history and physical examination, it was less likely than not that the Veteran’s digestion and elimination problems were related to or a residual of his treatment for non-Hodgkin’s lymphoma. In September 2016, the Veteran was afforded a new intestinal examination. At that time, the examiner noted the prior diagnosis of gallstone pancreatitis in 2006, as well as current treatment for constipation and gastrointestinal reflux disease (GERD). Current symptoms included chronic constipation. No repeats of the pancreatitis were noted since the initial incident. The examiner then reviewed the Veteran’s medical history and stated that in terms of relationship to chemotherapy agents, the only intestinal condition that is as likely as not due to chemotherapy is the gallstone pancreatitis. The examiner also noted an incisional abdominal hernia, though that was explicitly attributed to surgery for his renal cell carcinoma. A second opinion given by the same examiner stated that the Veteran’s pancreatitis is as likely as not due to his history of chemotherapy which have been postulated to cause that complication. A private treatment statement dated in May 2015 indicates that the Veteran has been treated for non-Hodgkin’s lymphoma and has suffered from frequent spontaneous bowel movements. The Veteran has also submitted articles and websites that imply a link between bowel and digestive issues, and chemotherapy. In light of this evidence, the Board previously granted service connection of pancreatitis as a secondary residual of non-Hodgkin’s lymphoma. The Veteran has not contested the rating assigned for that pancreatitis. However, based on the evidence of record, the Board does not find that a secondary rating for a bowel condition should be granted as a residual of non-Hodgkin’s lymphoma or treatment, therefore. Although the evidence and opinions indicated contesting symptoms, the Board finds the VA examinations far more persuasive than the other evidence of record. The private statement gives no actual opinion regarding the etiology of bowel symptoms, but merely indicates that the symptoms have been present since he was treated for lymphoma. All other medical opinions are against a finding that the bowel symptoms are a result of non-Hodgkin’s lymphoma or treatment therefor. Those opinions were given by a medical specialist in contemplation of the complete medical record, to include physical examinations and a complete review of the claims file, and considered known medical principles and the available medical literature, including that submitted by the Veteran. As the bowel symptoms beyond those attributed to his pancreatitis are not found to be related to his non-Hodgkin’s lymphoma, the Board finds that a separate rating as a residual is not warranted. Regarding the Veteran’s COPD, the Board acknowledges a diagnosis of COPD which was given in approximately 2015. The Board remanded the question of whether COPD was a residual of the Veteran’s lymphoma in December 2019. In July 2020, a VA examination was conducted via a review of the medical evidence and an interview with the Veteran. The examiner reviewed the entire record and concluded that the claimed condition, COPD, was less likely than not associated with his treatment for non-Hodgkin’s lymphoma. Rather, the Veteran has a long smoking history dating to the age of 18, which is far more likely the cause of his COPD, per known medical principles and medical treatise evidence. While the Veteran’s lymphoma was treated with a variety of drugs during active phases of treatment, they were not likely to cause his COPD, given his long and complicated smoking history. Likewise, regarding his sleep disturbances, in July 2020 an examiner reviewed the Veteran’s complete medical history and found that the Veteran does not presently meet the diagnostic criteria for chronic fatigue syndrome. While prolonged fatigue is common in Hodgkin’s lymphoma, prolonged levels of fatigue and sleeplessness are not a common phenomenon in non-Hodgkin’s lymphoma, per the available medical literature. It is noted that the Veteran had not been evaluated for other possible sleep disorders, to include sleep apnea, thus it was less likely than not that, based on the evidence and information available, that any chronic fatigue and sleep disturbances were related to his non-Hodgkin’s lymphoma. The Board finds these opinions persuasive in that they were rendered by medical specialists in contemplation of the complete medical record and considered both known medical principles and available medical literature. Finally, the Board has reviewed the record for any other disorders of record that may be related to non-Hodgkin’s lymphoma, but none beyond those previously discussed have been identified. The Board does acknowledge the Veteran’s own firmly held beliefs that his bowel issues, COPD and sleep disturbances are residual symptoms of his non-Hodgkin’s lymphoma, but finds this evidence of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding whether his COPD, bowel and sleep issues are residuals of his lymphoma, especially in light of the VA examiners’ conclusions to the contrary which included consideration of his complete medical record, the Veteran’s own assertions, and any medical evidence or articles provided by the Veteran. See id. In sum, the Board finds that separate ratings for a bowel condition, COPD, and sleep disturbances are not warranted for residuals of the Veteran’s non-Hodgkin’s lymphoma. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). If a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases, such as non-Hodgkin’s lymphoma, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. It is noted that kidney cancer is not among those listed diseases for presumptive purposes. Nonetheless, service connection may still be established on a direct basis if medical evidence favors a causal nexus between herbicide exposure and the claimed disability. 4. Entitlement to service connection of kidney cancer The Veteran seeks service connection of kidney cancer, which he asserts is due to herbicide exposure during active service. The Board finds that the claim should be denied. The Veteran was initially afforded a VA examination in June 2014. At that time, the examiner noted the Veteran’s diagnosis of non-Hodgkin’s lymphoma about 2005, with treatment until approximately 2007. He was first noted to have a renal cell neoplasm in approximately December 2006. The examiner then conducted a thorough review of the Veteran’s medical history and concluded that the Veteran’s renal cancer was less likely than not caused or aggravated by his lymphoma. In support of this, the examiner stated that the kidney cancer itself had not been confirmed by biopsy as of that time, also considering the timing of the Veteran’s renal neoplasm and lymphoma, practically at the same time, it was less likely that the renal cancer is secondary to the non-Hodgkin’s lymphoma. However, in July 2020, the Veteran was afforded a new kidney examination. The examiner again reviewed the Veteran’s complete medical record, to include his military personnel records. The examiner then concluded that it was more likely than not that his renal cell carcinoma was due to his herbicide exposure during active service. In support of this, the examiner stated that exposure to Agent Orange is a presumptive diagnosis for renal cell carcinoma. The RO subsequently denied the Veterans claim, on the basis that the July 2020 examiner relied on an incorrect premise that kidney cancer is a presumptive disability secondary to herbicide exposure. Despite the RO making such a conclusion, the Board finds that the claim should still be granted. First, the VA examiner’s opinion did state that renal cell carcinoma is a presumptive condition secondary to herbicide exposure. However, the examiner did not explicitly state that that presumption was based on 38 C.F.R. § 3.309(e), as set by Congress, or whether the term “presumptive” refers to known medical principles, which is also a possible reading of the opinion. Further, despite the RO finding the opinion inadequate, it did not obtain an addendum opinion to clarify the question on appeal. While it cites to the Adjudication Procedures Manual to explain that presumptive disabilities secondary to herbicide exposure are periodically set by the Secretary and Congress, and kidney cancer is not among those disabilities at this time, the Board is not bound by any internal procedural manual. See 38 C.F.R. § 19.5 (“The Board is not bound by [VA] manuals, circulars, or similar administrative issues.”). Additionally, as noted above, despite a disability not being listed as “presumptive” secondary to herbicide exposure, service connection may still be established between a disability and herbicides with adequate medical evidence and opinions in favor of a nexus. In this matter, the RO had more than ample opportunity to obtain an addendum which fully clarified the examiner’s opinion, but failed to do so. This leaves the Board with an opinion in favor of service connection, and no true medical opinion or evidence contrary to that opinion. As such, the claim is granted. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel