Citation Nr: 21025910 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-20 332 DATE: April 29, 2021 ORDER Entitlement to a 100 percent rating for Non-Hodgkin's Lymphoma (NHL) is granted from March 14, 2017 to June 24, 2020. FINDING OF FACT The Veteran’s NHL is reasonably shown to have been active for the entire appeal period beginning March 14, 2017. CONCLUSION OF LAW The criteria for entitlement to a 100 percent rating for Non-Hodgkin's Lymphoma (NHL) have been met from March 14, 2017 to June 24, 2020. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.117, Diagnostic Code (Code) 7715. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from August 1958 to October 1959. This matter is on appeal before the Board of Veterans Appeals (Board) from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board denied the instant appeal. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In a July 2020 order, the Court upheld a joint motion of the parties, vacating the June 2019 Board decision as it pertained to entitlement to an increased rating for NHL, and remanding the case to the Board for further appellate review consistent with the joint motion. In September 2020, the case was remanded for further development. In a January 2021 rating decision, the RO granted an increased, 100 percent rating for NHL effective June 24, 2020 based on the presence of active disease. Entitlement to a rating in excess of 10 percent for Non-Hodgkin's Lymphoma. The Veteran was granted entitlement to service connection for Non-Hodgkin’s Lymphoma (NHL) by the March 2017 rating decision. A noncompensable rating was assigned effective March 14, 2017. The Veteran then initiated this appeal by filing a May 2017 notice of disagreement seeking entitlement to an increased disability rating. In December 2017, the RO granted an increased 10 percent rating for anemia, as a residual of NHL and assigned a 10 percent rating effective March 14, 2017. As noted above, in the January 2021 rating decision, the RO granted an increased, 100 percent rating for NHL effective June 24, 2020 based on the presence of active disease. The RO also granted service connection for left and right neuropathy of the lower extremities as a residual of the NHL. A 10 percent rating was assigned for each lower extremity effective from March 14, 2007 to June 24, 2020 and a 0 percent rating was assigned from June 24, 2020. 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). The Veteran’s service-connected Non-Hodgkin’s lymphoma is evaluated pursuant to Code 7715. 38 C.F.R. § 4.117. In this regard, prior to December 9, 2018, Code 7715 provides for a 100 percent rating with active disease or during the treatment phase. Six months after discontinuance of surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures, the appropriate chemotherapy or other therapeutic procedures, the appropriate disability rating shall be determined by a 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 condition should be rated on residuals. As of December 9, 2018, Code 7715 provides that a 100 percent rating is warranted for Non-Hodgkin’s lymphoma when there is active disease, during treatment phase, or with indolent and non-contiguous phase of low-grade Non-Hodgkin’s lymphoma. A 100 percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Two years after discontinuation of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no recurrence, rate on residuals under the appropriate Diagnostic Codes. VA treatment records show that the Veteran was diagnosed with Non-Hodgkin’s lymphoma (i.e. Follicular lymphoma) in late 2013. He underwent 6 cycles of chemotherapy beginning in 2013 and then another five cycles of treatment in 2014 and 2015. Subsequent to this, he was put on a regular protocol to monitor for recurrence. A November 2016 VA PET scan showed unchanged to slightly decreased in size left upper quadrant mesenteric nodes, which were noted to be consistent with treated lymphoma. At a November 2016 VA oncology visit, it was noted that the Veteran would be seen for a follow up CT scan in 6 months to monitor for evidence of recurrence. A subsequent June 2017 CT scan showed stable enlarged mesenteric lymph node, which appeared unchanged. At a June 2017 VA oncology visit, it was noted that follow-up imaging would be performed in November 2017. The Veteran submitted an August 2017 VA hematologic and lymphatic conditions disability benefits questionnaire (DBQ) completed by a VA treating oncologist. The DBQ noted a diagnosis of non-Hodgkin’s lymphoma requiring continuous treatment with B 12 vitamins and multivitamins. The DBQ noted weakness, fatigability, shortness of breath, and dyspnea on mild exertion. The DBQ noted that the Veteran’s lymphoma was in partial remission with some nodes resolved and other nodes still present. The severity of the Veteran’s NHL was re-evaluated by the Veteran’s treating oncologist in December 2017. The oncologist indicated that the disease continued to require continuous medication if the form of B12, multivitamin and Vitamin D. The oncologist ultimately concluded that the Veteran’s NHL was in partial remission, and again indicated that the enlarged nodes remained but were stable. Current symptoms included weakness, easy fatigability, light-headedness, shortness of breath, dyspnea on mild exertion, and brain fog since chemotherapy. The severity of the Veteran’s non-Hodgkin’s lymphoma was also evaluated in a December 2017 VA compensation and pension examination. The examiner found that continuous medication for the condition was not required and that the disease was in remission. The examiner noted symptoms of generalized muscle weakness easy fatigability, shortness of breath, dyspnea on mild exertion and lower extremity neuropathy. A Veterans Health Administration (VHA) medical opinion regarding the state of the Veteran’s non-Hodgkin’s lymphoma was obtained by the Board in January 2019. Following a review of the Veteran’s medical records and entire claims file, the VHA specialist stated, “On the basis of multiple follow-up surveillance CT scans and PET scans it can be reasonably concluded that the [V]eteran is in remission.” A June 2019 VA CT scan of the thorax showed the development of three new nodules in the spleen measuring in size from 6 to 12 mm. These were noted to be of questionable significance and ultrasound was recommended for further evaluation. A subsequent June 2019 echogram/ultrasound showed two out of three low density nodules present in the spleen. Medially there was a 17 mm hyperechoic nodule and along the periphery there was a second 10 mm nodule. It was noted that statistically most splenic nodules are benign but malignancy metastatic disease to the spleen could not be excluded. A follow-up December 2019 echogram/ultrasound showed the two non-specific nodules in the spleen. At a June 2020 oncology visit, diagnostic impressions included prominently retroperitoneal and mesenteric lymphadenopathy as well as nodular splenic extra-nodal involvement consistent with Deauville 5 recurrence (of NHL). It was noted that the Veteran would be placed on a “prechemo” schedule in advance of receiving chemotherapy. Subsequent VA treatment records as late as October 2020 show that treating providers desired to obtain a biopsy of the Veteran’s splenic nodules but that the nodules were not safely accessible for biopsy given the serious risk of needle manipulation in this zone. In the July 2020 joint motion, the parties noted that the Board did not address whether the Veteran should receive separate ratings for possible residuals of NHL, including peripheral neuropathy, fatigue, hearing loss and cognitive decline (for any time he did not have active disease). Also, the Board did not appropriately address its choice of Diagnostic Codes. In this regard, the parties noted that Diagnostic Code 7700 was removed from the rating schedule by the time of the Board’s decision, yet the Board relied upon it to evaluate the Veteran’s anemia. The parties also noted that the Board relied upon a pre-December 2018 version of Diagnostic Code 7715 to evaluate the Veteran’s NHL. The parties indicated that Code 7715 was modified effective December 2018 and extended the allowable time required for mandatory examination from 6 months to two years because recurrences of NHL are very high. Moreover, the Board erred by not addressing entitlement to a total disability rating based on individual unemployability (TDIU) even though the Veteran specifically raised this issue in his May 2019 submission to the Board. At a January 2021 VA contract examination, the examiner diagnosed the Veteran with active NHL and anemia as a residual of the NHL. The examiner noted that the Veteran was undergoing antineoplastic chemotherapy. The examiner also found that the Veteran’s anemia was secondary to his receipt of chemotherapy. The above summarized evidence shows that the Veteran’s NHL was found to be in partial remission by the Veteran’s treating oncologist in both August 2017 and December 2017. The December 2017 VA compensation and pension examiner found that the NHL was in full remission. All three opinions are probative. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran. As noted above, the effective date for service connection for the disease is March 14, 2017. Because the Veteran was receiving regular monitoring for recurrence of the NHL as of March 14, 2017 and the findings of only partial remission in August 2017 and December 2017 by the treating oncologist, the evidence indicates that the disease was only in partial remission during the time period from March 14, 2017 to August 2017. The nodes found to be present by the VA oncologist in August and December 2017 were also present during the period from March 14, 2017 to December 2017. Given that the Veteran was not found to be in full remission from March 14, 2017 to December 2017, his NHL may reasonably be considered to have been active, warranting a 100 percent rating under the initially applicable Code 7715. 38 C.F.R. § 4.117. Subsequently, the evidence does not contain any affirmative finding of remission until the January 2019 VHA opinion. Thus, resolving reasonable doubt in the Veteran’s favor, remission of the NHL was not shown to have been present prior to this point and an assignment of a 100 percent rating based on active disease is warranted up until January 2019. Id. Further, five months subsequent to January 2019, in June 2019, imaging showed the presence of the splenic nodules. Although these nodules were initially found to probably be benign, the June 2020 VA oncology record shows that they were later found to be part of the cancerous process of the Veteran’s recurrent NHL. Thus, it is reasonably established that the Veteran had active NHL after the finding of remission in January 2019, as early as June 2019. Consequently, a 100 percent rating is similarly warranted for the NHL based on active disease from June 2019. 38 C.F.R. § 4.117, Code 7715. Finally, the June 2019 imaging appears to be the earliest imaging evidence of the splenic nodules. However, as the nodules were already present at the time of this imaging, it is reasonable to presume that some active NHL disease process pre-dated June 2019 to some extent. This presumption is particularly reasonable given that the splenic involvement appears to involve a metastatic process (See e.g. July 2020 gastroenterology consultation, noting that the Veteran’s splenic involvement was suspected to be a transfer to diffuse large B cell lymphoma (DLBCL). Consequently, as the imaging is relatively close in time to when the Veteran was determined to be in remission by the VHA physician and resolving reasonable doubt in the Veteran’s favor, the Board will find that the Veteran’s NHL was active in some state as of January 2019. Thus, the Veteran is reasonably shown to have had active NHL during the entire appeal period (i.e. from March 14, 2017 to the present). Accordingly, a 100 percent rating is warranted for this entire appeal period. Id. Making this finding of active disease being present from January 2019 to June 2019 maintains the preference in the rating schedule for stable disability ratings when possible and avoids the need for further development of the appeal. Because the Board is granting the full 100 percent rating for NHL for the entire appeal period, according to Code 7715, it need not provide ratings for any NHL residuals. Additionally, although the Veteran has alleged entitlement to TDIU, this allegation is based on the effects of his NHL, which has now been assigned a total, 100 percent disability rating (and there is no indication that any service connected disability other than NHL has resulted in TDIU). Consequently, assignment of a TDIU rating is not warranted. (Continued on the next page)   In sum, given the nature of the evidence, it is not affirmatively established that the Veteran’s NHL was in full remission during the appeal period. Thus, resolving reasonable doubt in his favor, he is shown to have had active disease, allowing for assignment of a 100 percent rating for NHL for the entire appeal period, beginning March 14, 2017. 38 C.F.R. §§ 4.3, 4.117, Code 7715. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.