Citation Nr: 21031129 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-09 661A DATE: May 20, 2021 REMANDED Entitlement to a compensable disability rating from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016, for non-Hodgkin's lymphoma is remanded. Entitlement to a rating in excess of 10 percent for anemia and fatigue, residuals of non-Hodgkin's lymphoma, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy, residuals of non-Hodgkin's lymphoma, is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity neuropathy, residuals of non-Hodgkin's lymphoma, is remanded. Entitlement to separate ratings for residuals of service-connected non-Hodgkin's lymphoma, to include left and right upper extremity peripheral neuropathy, swelling of the legs, joint pain, insomnia, and weight loss, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to July 1971. These matters originally come to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Chicago, Illinois. Previously, the Board issued a decision in August 2019 wherein the Board denied entitlement to a compensable rating for non-Hodgkin's lymphoma from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016; denied entitlement to a rating in excess of 10 percent for anemia and fatigue residuals of non-Hodgkin's lymphoma from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016; and granted a 10 percent disability rating, but no higher, for right index finger disability from May 14, 2010, but no earlier. Thereafter, the Veteran appealed the decision to the United States Court of Appeals for Veterans Affairs (CAVC or "the Court"). Unfortunately, during the pendency of the appeal before CAVC, the Veteran died on January [REDACTED], 2020. The Appellant filed to be recognized as the appropriate substitute with VA in February 2020 for purposes of continuing the claim at the Court. Eventually, this request was granted in an October 2020 decision and, the Appellant was recognized as an appropriate substitute for the Veteran. Thereafter, in January 2021, the Court granted a January 2021 Joint Motion for Partial Remand (JMPR) vacating only part of the Board's August 2019 decision. Specifically, the January 2021 JMPR vacated the Board's denial of entitlement to a compensable rating for non-Hodgkin's lymphoma from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016, and entitlement to a rating in excess of 10 percent for anemia and fatigue residuals of non-Hodgkin's lymphoma from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016. The Appellant did not appeal the part of the Board's decision addressing the Veteran's right index finger disability, and accordingly, the Court dismissed the appeal regarding that issue. Thus, the matters have returned to the Board for further consideration consistent with the January 2021 JMPR. 1. Entitlement to a compensable disability rating from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016, for non-Hodgkin's lymphoma is remanded. According to the terms of the January 2021 JMPR, the parties found error in the prior August 2019 Board denial insofar as the Board did not resolve whether the Veteran was in a "treatment phase" during the remaining time periods on appeal. That is, while the Board resolved the active disease phases of his non-Hodgkin's lymphoma, there appeared in the record ambiguities unaddressed regarding the Veteran's "treatment phase" could have warranted a 100 percent disability rating. Under Diagnostic Code (DC) 7715 for non-Hodgkin's lymphoma, a 100 percent disability rating is warranted "when there is active disease, during a treatment phase, or with indolent and non-contiguous phase of low grade NHL." See 38 C.F.R. § 4.117, DC 7715 (emphasis added). Thus, DC 7715 provides for a 100 percent disability rating for active disease or during a treatment phase. See Huerta v. McDonough, U.S. Court of Appeals for Vet. Claims No. 19-2805, (decided April 27, 2021) (holding based on the location, and omission, of certain punctuation and conjunctions, that the plain language of a similarly drafted diagnostic code separated by commas and "or" only required one of the listed items for rating rather than all of the items listed for assignment of the rating). Here, a VA opinion was obtained in January 2017 addressing the Veteran's periods of "active" disease since his 2007 diagnosis. The VA examiner opined the Veteran's non-Hodgkin's lymphoma was in remission from 2010 to 2013 with a recurrence in 2013 followed by another period of remission and then recurrence in 2016. Upon review, treatment records reflect the Veteran was receiving Rituxan every six months following residual adenopathy. Additionally, 2010 records reflect the Veteran started having increased "LAD" on examination that was treated with and responded to Rituxan "maintenance." Other records reflect that while the Veteran was receiving Rituxan for "maintenance," the Veteran was "thought to be in remission" but started have increased "LAD" on examination that responded to the Rituxan. To date, however, an opinion has not been obtained addressing whether the Veteran was in a "treatment phase" for his non-Hodgkin's lymphoma from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016. Further, clarification is needed to determine whether the Veteran's Rituxan reflects a period of "active disease" or remission from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016. Thus, remand is necessary to obtain an addendum opinion clarifying the Veteran's periods of "active" non-Hodgkin's lymphoma and "treatment phases" during May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). 2. Entitlement to a rating in excess of 10 percent for anemia and fatigue, residuals of non-Hodgkin's lymphoma, is remanded. 3. Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy, residuals of non-Hodgkin's lymphoma, is remanded. 4. Entitlement to a rating in excess of 10 percent for right lower extremity neuropathy, residuals of non-Hodgkin's lymphoma, is remanded. 5. Entitlement to separate ratings for residuals of service-connected non-Hodgkin's lymphoma, to include left and right upper extremity peripheral neuropathy, swelling of the legs, joint pain, insomnia, and weight loss, is remanded. As agreed in the January 2021 JMPR, the Board did not discuss the Veteran's residuals of anemia including peripheral neuropathy. While the Board noted the Veteran's residuals of non-Hodgkin's lymphoma, including anemia and neuropathy of the bilateral lower extremities, were separately service-connected and rated under 38 C.F.R. § 4.117, the Board did not rate the neuropathies or address why it did not do so. The Veteran was afforded a VA examination in April 2015 to determine the etiology and severity of his neuropathies. Indeed, the Veteran was afforded a VA examination regarding his back wherein the examiner opined that the Veteran experienced bilateral lower extremity radiculopathy. The Veteran was also afforded a separate peripheral nerves conditions examination wherein the examiner found that the Veteran had symptoms attributable to peripheral nerve conditions in all extremities of varying severities. Further, treatment records reflect complaints of symptoms related to peripheral neuropathy in all extremities. Based upon review of the record, however, there is conflicting evidence that at least the Veteran's bilateral lower extremity peripheral neuropathy was partially attributed to the Veteran's non-service-connected spine condition. There remains question of whether the Veteran's peripheral neuropathies of all extremities are distinguishable symptoms of non-Hodgkin's lymphoma versus non-service-connected degenerative joint disease of the spine. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (impairment of a part due to other causes which are distinguishable in their symptoms from those of the service-connected disability should not be attributed to the service-connected disability for purposes of assigning a disability rating). Thus, clarification is necessary from an addendum opinion addressing whether the Veteran's peripheral neuropathy of each extremity noted in the 2015 VA examination is a residual of his non-Hodgkin's lymphoma or a symptom of his non-service-connected degenerative joint disease. Id.; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Further, since the January 2021 JMPR, the Veteran's representative has contended that the Board did not appropriately address and rate the noted residuals within the August 2019 Board decision. The Board acknowledged the Veteran had residuals of non-Hodgkin's lymphoma including swelling of the legs, joint pain, insomnia, and weight loss, but found that the residuals were collectively service-connected as multiple, noncompensable service-connected disabilities. As previously discussed, in the February 2017 rating decision, the Veteran's non-Hodgkin's lymphoma was rated as 100 percent disabling from April 2, 2013, to February 1, 2014, and from December 27, 2016. However, separate ratings were not awarded or addressed by the Board for the Veteran's acknowledged residuals of swelling of the legs, joint pain, insomnia, and weight loss during the remaining periods on appeal. The Board also notes remand is required regarding these claims as they are inextricably intertwined with the Veteran's pending increased rating claim for non-Hodgkin's lymphoma addressed herein. Under DC 7715, residuals of non-Hodgkin's lymphoma are only rated under the appropriate DCs when a 100 percent disability rating for non-Hodgkin's lymphoma is not assigned. As the remaining periods on appeal may receive an increased rating for non-Hodgkin's lymphoma following the additional development directed herein thereby precluding separate ratings for residuals, the Veteran's residuals cannot be properly rated until the underlying non-Hodgkin's lymphoma increased rating claim is resolved. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, these claims are remanded as inextricably intertwined with the Veteran's increased rating claim for non-Hodgkin's lymphoma. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to an appropriate examiner for review. The examiner should render an opinion, including rationale, addressing the following: (a.) Whether the Veteran's non-Hodgkin's lymphoma was "active" during any period from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016; (b.) Whether the Veteran's non-Hodgkin's lymphoma was in a "treatment phase" during any period from May 14, 2010, to April 2, 2013, and from February 1, 2014, to December 27, 2016; and In so opining, the examiner is directed to address and consider the Veteran's treatment records reflecting treatment with Rituxan that was described as "maintenance," the increase of "LAD" levels that responded to Rituxan, and the treatment records referencing that the Veteran "thought" he was in remission until the increased "LAD" levels were found. The examiner should also address whether Rituxan was treatment of non-Hodgkin's lymphoma and/or whether his Rituxan indicated "active" non-Hodgkin's lymphoma. (c.) Whether it can be ascertained that the Veteran's peripheral neuropathies of each extremity (right and left upper extremities and right and left lower extremities), as indicated in the 2015 VA examination, can be attributed to the Veteran's service-connected non-Hodgkin's lymphoma or another non-service-connected condition, including degenerative joint disease of the spine. If any of the Veteran's residuals were, in-part, attributable to non-service-connected conditions, such as degenerative joint disease of the spine, the examiner should opine as to whether the manifestations can be attributed to non-Hodgkin's lymphoma or non-service-connected degenerative joint disease of the spine, if possible. If manifestations cannot be distinguished, the examiner should so state. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.