Citation Nr: 21028590 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-48 258 DATE: May 11, 2021 ORDER For the entire initial rating period on appeal from April 10, 2018, a higher initial disability rating in excess of 10 percent for left upper extremity neuropathy, as a residual of Non Hodgkin's Lymphoma (NHL), is denied. REMANDED Entitlement to a higher initial (compensable) disability rating for residuals of Non Hodgkin's Lymphoma (NHL), from August 20, 2015, other than left upper extremity neuropathy, to include a separate compensable disability rating for left lower extremity neuropathy, is remanded. Entitlement to a higher initial disability rating in excess of 50 percent for depressive disorder is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire initial rating period on appeal from April 10, 2018, the service connected left upper extremity neuropathy, as a residual of NHL, more nearly approximated mild incomplete paralysis. CONCLUSION OF LAW For the entire initial rating period on appeal, from April 10, 2018, the criteria for a higher initial disability rating in excess of 10 percent for left upper extremity neuropathy, as a residual of NHL, have not been met or more nearly approximated. 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, 4.21, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from January 1972 to January 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from multiple Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. On June 29, 2015, VA received the Veteran's claim for service connection for NHL. In an October 2015 rating decision, the RO granted service connection for NHL and assigned an initial disability rating of 100 percent from June 29, 2014 through August 19, 2015, and assigned a noncompensable (0 percent) disability rating from August 20, 2015. In May 2016, VA received a letter from the Veteran expressing disagreement with reduction of the NHL disability rating from 100 percent to noncompensable. While this letter was not on an official Notice of Disagreement (NOD) form, during the one-year appeal period the Veteran received a new NHL VA examination in June 2016. As this constituted new and material evidence, the October 2015 rating decision remained open pending readjudication pursuant to 38 C.F.R. § 3.156. On May 20, 2016, VA received the Veteran's claim for service connection for depression. At that time, the Veteran also requested service connection for left shoulder nerve damage as secondary to the service-connected NHL. Following development, in an August 2016 rating decision, the RO granted service connection for depressive disorder and assigned an initial 50 percent disability rating, effective May 20, 2016, the date of receipt of claim for service connection. The RO also denied the issue of service connection for left ulnar neuropathy. In April 2017, VA received a NOD on the appropriate VA Form 21-0968. Per the NOD, the Veteran disagreed with the initial rating assigned for the depressive disorder. Further, the Veteran expressed disagreement with the rating assigned for the NHL. While this was not a timely NOD as to the October 2015 rating decision assigning an initial disability rating for the NHL, as discussed above, the October 2015 rating decision remained open pending readjudication following receipt of new and material evidence in June 2016. The Veteran did not express disagreement with the denial of service connection for left ulnar neuropathy. As no new and material evidence was received within one year of the issuance of the August 2016 rating decision denying service connection for left ulnar neuropathy, the August 2016 rating decision became final as to the service connection denial. A Statement of the Case (SOC) was issued solely on the issue of a higher initial disability rating for depressive disorder in August 2017. The Veteran subsequently filed a VA Form 9, Appeal to Board of Veterans' Appeals, perfecting the appeal as to the issue of a higher initial disability rating for depressive disorder. VA received a VA Form 21-526EZ on April 10, 2018 asking for an increased disability rating for the service-connected NHL. During development of the appeal, the Veteran was scheduled for both a VA NHL examination and a VA peripheral nerve examination in June 2018. As such, it appears that the RO took the April 2018 filing as both an increased rating claim for the NHL and as a claim to reopen the issue of service connection for a left upper extremity nerve disorder. In a June 2018 rating decision, the RO granted a 10 percent disability rating for the NHL from April 10, 2018. Specifically, the RO found that the Veteran had a NHL residual of left upper extremity neuropathy, and rated the NHL and left upper extremity neuropathy together under hyphenated Diagnostic Code 7715-8515. This also constituted a readjudication of the October 2015 rating decision that had remained open up until this point. Subsequently, in July 2018, the Veteran filed a NOD disagreeing with the 10 percent rating assigned in the June 2018 rating decision. Per the NOD, the Veteran advanced having multiple other NHL residuals that should be provided separate compensable disability ratings. A SOC on the issue of the NHL disability rating was issued in August 2018. Review of the record does not indicate that a substantive appeal, via VA Form 9, was subsequently received by VA. Nonetheless, as VA has treated the NHL rating issue as properly being before the Board, to include taking testimony on the issue in March 2021, the Board finds the NHL rating issue to be before it at this time. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that 38 U.S.C. § 7105(d)(3), which is the governing statute pertaining to the time frame for submitting substantive appeals, is not jurisdictional, so the requirement may be waived by VA actions). In the instant decision the Board bifurcates the issue of a higher initial disability rating for residuals of NHL, to include a separate compensable disability rating for left lower extremity neuropathy, from the issue of a higher initial disability rating for left upper extremity neuropathy, as a residual of NHL. Upon reviewing the evidence of record the Board finds that, while additional development is needed to determine whether the Veteran has any NHL residuals in addition to left upper extremity neuropathy, the evidence of record is sufficient to rate the left upper extremity neuropathy at this time. Further, based upon a review of the procedural history discussed above, to include the fact that the August 2016 RO rating decision became final as to the issue of service connection for left ulnar neuropathy, the Board finds the rating periods on appeal to be as follows. For the issue of a higher initial disability rating for residuals of NHL, other than left upper extremity neuropathy, to include a separate compensable disability rating for left lower extremity neuropathy, the Board finds the rating period begins from August 20, 2015, the date the Veteran's NHL disability rating was reduced from 100 percent to noncompensable. For the issue of a higher initial disability rating for left upper extremity neuropathy, the Board finds the rating period begins from April 10, 2018, the date of claim to reopen service connection for a left upper extremity nerve disorder. For the issue of a higher initial disability rating for depressive disorder, the Board finds the rating period begins from May 20, 2016, the date of claim for service connection for depressive disorder. The Veteran testified at a March 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 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). Concerning the NHL residual and depressive disorder rating issues, and the issue of entitlement to a TDIU, as the Board remands these issues for further development, no further discussion of the duties to notify and assist is necessary as to those issues. As to the issue of a higher initial disability rating for left upper extremity neuropathy, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and was provided with an adequate VA peripheral neuropathy examination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that in the July 2018 NOD the Veteran disagreed with many of the findings of the VA examiner in June 2018, and asked that a new examination be performed by an oncologist. In the instant decision the Board remands the issue of a higher initial disability rating for residuals of NHL, other than left upper extremity neuropathy, to include a separate compensable disability rating for left lower extremity neuropathy, for an addendum opinion from an oncologist; however, a review of the June 2018 peripheral neuropathy examination report, when considered with the Veteran's testimony at the March 2021 virtual Board hearing and the other evidence of record, reflects that the June 2018 VA peripheral nerve examination adequately recorded the left upper extremity nerve symptoms and findings necessary to rate the disability. As such, remand for a new VA left upper extremity nerve examination is unwarranted. For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. Higher Initial Disability Rating for Left Upper Extremity Neuropathy is Denied. 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). 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. The Veteran has appealed from the initial rating assigned for the service connected left upper extremity neuropathy, as a residual of NHL. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the Court addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Diagnostic Codes 8515 8716 address ratings for paralysis of the peripheral nerves affecting the upper extremities, neuritis, and neuralgia. Diagnostic Codes 8515, 8615, and 8715 provide ratings for paralysis, neuritis, and neuralgia of the median nerve. Neuritis and neuralgia are rated as incomplete paralysis. A disability rating of 10 percent is awarded for mild incomplete paralysis of the minor or major extremity. A 30 percent disability rating is awarded for moderate incomplete paralysis of the major extremity, while a 20 percent disability rating is awarded for the minor extremity. A 40 percent disability rating is awarded for severe incomplete paralysis of the major extremity, while a 30 percent disability rating is awarded for the minor extremity. A 70 percent disability rating is awarded for complete paralysis of the median nerve in the major extremity with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, while a 60 percent disability rating is awarded for the minor extremity. 38 C.F.R. § 4.124(a). The evidence of record reflects that the right upper extremity is the Veteran's major extremity. Having reviewed all the evidence of record, lay and medical, the Board finds that, for the entire initial rating period on appeal, from April 10, 2018, the service connected left upper extremity neuropathy, as a residual of NHL, more nearly approximated mild incomplete paralysis. The Veteran received a VA peripheral neuropathy examination in June 2016. Per the examination report, the Veteran advanced having symptoms of pain, numbness, and tingling in the left upper extremity. Upon examination the Veteran was found to have mild pain, mild paresthesias and/or dysesthesias, and mild numbness in the left upper extremity. The Veteran did not have constant pain in the left upper extremity. Muscle strength testing was full, and there was no muscle atrophy. Reflex testing was normal. There were no trophic changes, and functioning of the left upper extremity was not so diminished that the Veteran would be equally served by amputation with prosthesis. As to functional impairment, it was noted that the Veteran would have difficulty lifting, carrying, and pushing and pulling heavy objects. The Veteran could perform all other activities of daily living. At the conclusion of the examination the VA examiner specifically opined that the left upper extremity neuropathy symptoms manifested as mild incomplete paralysis. A new VA peripheral neuropathy examination was performed in June 2018. At that time, the Veteran only reported numbness in the left upper extremity. Upon examination, the Veteran had mild paresthesias and/or dysesthesias and mild numbness in the left upper extremity. The Veteran did not have intermittent or constant pain. Muscle strength was full and without atrophy, and reflexes were normal. There were no trophic changes, and functioning of the left upper extremity was not so diminished that the Veteran would be equally served by amputation with prosthesis. Further, the VA examiner found the left upper extremity neurological symptoms had no impact on the Veteran's ability to work. At the conclusion of the examination the VA examiner opined that the left upper extremity neuropathy manifested as mild incomplete paralysis. The Veteran testified at a March 2021 virtual Board hearing. At that time, the Veteran testified that the left upper extremity neurological symptoms had remained consistent over the past five to six years. The Veteran described the neuropathy symptoms as pain, tingling, burning, and a feeling like ants were crawling along the skin. Further, the Veteran testified that symptoms of pain would sometimes flare up; however, even at its worst the pain was not more than a five or six out of ten on the pain scale. The Veteran also denied that the left upper extremity symptoms had any impact on the ability to grasp objects. The Board has reviewed the considerable medical evidence of record; however, such medical evidence does not reflect left upper extremity neurological symptomatology beyond that discussed above during the initial rating period on appeal. After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period on appeal, from April 10, 2018, the service connected left upper extremity neuropathy, as a residual of NHL, more nearly approximated mild incomplete paralysis. As discussed above, two VA examiners, one in June 2016 and one in June 2018, have opined that the Veteran's left upper extremity neuropathy manifested as mild incomplete paralysis, and the Veteran testified at the March 2021 virtual Board hearing that the left upper extremity neurological symptoms had remained the same over the past five to six years. The evidence of record reflects, both lay and medical, reflects that the Veteran's left upper extremity neurological symptoms are primarily sensory in nature, and even during a flare-up, the pain is no more than a five or six out of ten on the pain scale. As such, the Board finds the evidence of record supports the findings of the VA examiners in June 2016 and June 2018. The evidence of record, both lay and medical, reflects that the left upper extremity neuropathy symptoms are best characterized as mild; therefore, a disability rating under Diagnostic Code 8515 in excess of 10 percent at any point during the initial rating period on appeal is not warranted. 38 C.F.R. § 4.124a. As the preponderance of the evidence is against the claim for a higher initial disability rating in excess of 10 percent for left upper extremity neuropathy, as a residual of NHL, the higher initial disability rating appeal must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). REASONS FOR REMAND 2. Initial NHL Disability Rating VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Social Security Administration (SSA) records are relevant to a claim and VA must obtain them where either (1) there is an SSA decision pertaining to a medical condition related to the one for which the veteran is seeking service connection or (2) there are specific allegations "giv[ing] rise to a reasonable belief" that the SSA records may pertain to the claimed disability. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) Throughout the course of this appeal, including in a July 2018 NOD, the Veteran has argued that he is experiencing a number of NHL residuals symptoms, to include orthopedic symptoms, skin symptoms, respiratory symptoms, headache symptoms, and lower extremity nerve symptoms. In June 2018, a VA examiner opined that the Veteran's lower extremity neurological symptoms were due to non service connected back symptoms, and not chemotherapy treatments; however, the VA examiner then noted that "chemo induced neuropathy is an accepted secondary pathology." No explanation was provided for why the back disorder was the more likely cause of the lower extremity neuropathy symptoms. Further, in a June 2018 VA NHL examination report, the VA examiner noted that the Veteran had attributed a number of constitutional symptoms to NHL, but "to the best of this examiner's understanding," due to the Veteran being in remission, the VA examiner found it unreasonable to attribute the purported symptoms to the NHL. This opinion appears contrary to an October 2017 private treatment letter in which a private physician reported that the Veteran was experiencing "chronic side effects" of the prior NHL treatment. Unfortunately, the private physician failed to identify the Veteran's residual symptoms. In a July 2018 NOD, the Veteran specifically requested that a new VA NHL examination be performed by an oncologist. While the Board does not find that a new VA examination is necessary considering the ample medical evidence of record, considering the complexity of the medical questions at issue, the Board does find that an opinion from an oncologist or other appropriate cancer specialist would be helpful in determining whether the Veteran has any NHL residuals in addition to the left upper extremity neuropathy. Further, the evidence of record indicates that there may be outstanding SSA records relevant to this issue. On remand the Agency of Original Jurisdiction (AOJ) should attempt to obtain these outstanding SSA records. 3. Initial Depressive Disorder Disability Rating A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran last received a VA mental health examination in June 2016. At the March 2021 virtual Board hearing, the Veteran testified that the mental health symptoms had worsened since the last VA examination. As such, the Board finds remand for a new VA mental health examination to be warranted. 4. TDIU During the course of this appeal, to include in testimony at the March 2021 virtual Board hearing, VA has received evidence indicating that the Veteran may be unemployable due to service-connected disabilities, to include the disabilities currently on appeal. As such, the Board finds that the issue of entitlement to a TDIU has been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of entitlement to a TDIU has not previously been addressed, the Board remands the issue to the AOJ for initial adjudication. The aforementioned matters are REMANDED for the following action: 1. Contact the SSA and request that it provide a copy of any SSA decision awarding or denying disability benefits for the Veteran, copies of all medical records upon which any such SSA disability benefit award was based, and copies of any medical records associated with any subsequent disability determinations by the SSA for the Veteran. If such records are identified but not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning depressive disorder and/or NHL residuals. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disabilities, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's depressive disorder and/or NHL residuals, not already of record, for the period from July 2016. 4. Obtain a medical opinion from an oncologist or other appropriate cancer specialist. The relevant facts and medical history should be made available to the specialist. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The specialist should provide the following opinions: A) The specialist should review all of the Veteran's medical records and identify any residuals of the service connected NHL, currently in remission. In rendering this opinion, the specialist should address the October 2017 private treatment letter in which a private physician reported that the Veteran was experiencing "chronic side effects" of the prior NHL treatment. B) The specialist should opine as to whether it is at least as likely as not (50 percent or higher degree of probability) that currently diagnosed lower extremity neuropathy was caused by chemotherapy treatment for the service connected NHL. 5. Schedule the appropriate VA mental health examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (Continued on the next page) The VA examiner should report the extent of all mental health disability symptoms in accordance with VA rating criteria. 6. Then, after any additional development deemed warranted, readjudicate the remanded issues. 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.