Citation Nr: 21035182 Decision Date: 06/08/21 Archive Date: 06/08/21 DOCKET NO. 18-14 809 DATE: June 8, 2021 ORDER The reduction in rating for non-Hodgkin's lymphoma (NHL) from 100 percent was proper. Effective December 1, 2015, entitlement to a rating of 40 percent rating for residuals of NHL is granted. Entitlement to an initial rating of 20 percent for peripheral neuropathy of the left lower extremity is granted. Entitlement to an initial rating of 20 percent for peripheral neuropathy of the right lower extremity is granted. Subject to the law and regulations governing payment of monetary benefits, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) effective December 1, 2015, is granted. FINDINGS OF FACT 1. The Veteran received notice of the proposed reduction of his 100 percent rating for NHL by way of a rating decision and notification letter dated June 2015, and he was notified of his right to submit additional evidence and request a predetermination hearing. 2. The proposed reduction for NHL was implemented in a September 2015 rating decision, effective December 1, 2015, and was made in compliance with applicable due process laws and regulations. 3. At the time of the September 2015 rating decision implementing the rating reduction, the rating being reduced had been in effect for less than five years, and the medical evidence reflected material improvement in the Veteran's NHL disability under the ordinary conditions of his life. 4. Effective December 1, 2015, the Veteran's residuals of NHL, to include chronic fatigue syndrome, have resulted in symptoms that are nearly constant and restrict routine daily activities from 50 to 75 percent of the pre-illness level. 5. The Veteran's left lower extremity peripheral neuropathy is manifested by moderate incomplete paralysis throughout the appeal period. 6. The Veteran's right lower extremity peripheral neuropathy is manifested by moderate incomplete paralysis throughout the appeal period. 7. Effective December 1, 2015, the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction of the 100 percent rating for NHL was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1-4.7, 4.117, Diagnostic Code (DC) 7715 (2015). 2. Effective December 1, 2015, the criteria for a 40 percent rating for residuals of NHL have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.117, DC 7715. 3. The criteria for entitlement to an initial rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, DC 8520, 8521. 4. The criteria for entitlement to an initial rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, DC 8520, 8521. 5. Effective December 1, 2015, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1965 to May 1969, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2019 and were remanded for further development. Propriety of Reduction 1. Whether the reduction of the 100 percent rating for NHL was proper. The Veteran's residuals of NHL are rated under DC 7715. This Diagnostic Code assigns a 100 percent rating when there is an active disease or during a treatment phase. It is noted that a 100 percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, 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 § 3.105(e). If there has been no local recurrence or metastasis, rate on residuals. See 38 C.F.R. § 4.117, DC 7715 (2015). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of a general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The above considerations apply to ratings which have continued for long periods at the same level (five years or more), and do not apply to disabilities which have not become stabilized and are likely to improve. The relevant period for this purpose is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. Here, the Veteran's 100 percent disability rating for NHL was effective December 6, 2013, and reduced on December 1, 2015. Consequently, it was not in effect for the requisite five-year period of time as set forth at 38 C.F.R. § 3.344(a), (b). Therefore, that provision is also not applicable in this case. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was implemented, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). The Board finds that the notice and procedural requirements have been met. Historically, a June 2014 rating decision granted service connection for NHL and assigned a 100 percent, effective December 6, 2013. VA examinations obtained in June and September 2015 note NHL was in remission, radiation therapy was completed on March 5, 2014, and antineoplastic chemotherapy was completed on January 2, 2014. See VA examinations dated June 2015 and September 2015. In a June 2015 rating decision, the Veteran was notified of the RO's intent to reduce his NHL rating, which was mailed to the Veteran along with a letter informing him that he had 60 days in which to present additional evidence and 30 days to request a predetermination hearing. See June 2015, Notification letter. The Veteran provided additional information but did not request a hearing. The proposed reduction of his rating for NHL was effectuated by a September 2015 rating decision, effective December 1, 2015, thereby meeting the requirement of a 60-day waiting period between the date of the final action and the effective date of the reduction. Given the chronology of the processes described above, the Board finds that the RO complied with the procedures for reducing the Veteran's disability rating for his NHL effective December 1, 2015. ¬38 C.F.R. § 3.105(e), (i). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 2. Entitlement to a rating in excess of 20 percent for residuals of NHL as of December 1, 2015. The Veteran contends he is entitled to a rating in excess of 20 percent for residuals of NHL, which is currently evaluated under DC 7715. Specifically, the Veteran stated he is easily fatigable, chronic fatigue precludes pursuit of normal activities, and his fatigability is more consistent with restriction of 50 to 70 percent of normal activities pre-illness. See March 2018, VA Form 9; December 2015, NOD; July 2015, VA Form 21-4138. As stated in the Propriety of Reduction section above, DC 7715 instructs that when there is no recurrence, residuals of NHL should be rated under the appropriate diagnostic code(s). Diagnostic Code 6354 provides that chronic fatigue syndrome includes debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 20 percent rating is assigned for signs and symptoms that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent rating is assigned for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least four hours but less than six weeks total duration per year. A 60 percent rating is assigned for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is assigned for signs and symptoms of chronic fatigue syndrome that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. 38 C.F.R. § 4.88b, DC 6354. A note underneath DC 6354 provides that, for the purpose of rating chronic fatigue syndrome, the condition will be considered incapacitating only while it requires bed rest and treatment by a licensed physician. Id. VA examinations of record indicate the Veteran's reports that pre-illness he was active outdoors and participated in activities such as golf, yard work, traveling, and driving long distances. Since undergoing radiotherapy for NHL, he takes naps more frequently; falls asleep during TV shows; cannot walk a full city block; does not perform upper body exercises; must use a golf cart when playing golf when pre-illness he did not; must rest after 30 minutes of physical work; and is limited to the riding mower when prior to his illness he could do yard work all day, to include trimming, mowing, weeding, and caring for the fruit trees on his girlfriend's five acre property. See VA examinations dated June and September 2015. After review of the evidence of record, the Board finds that a rating of 40 percent for residuals of NHL is warranted effective December 1, 2015. The Board notes the Veteran's competent and credible lay statements that he is unable to do yard work all day, perform physical work for more than 30 minutes without resting, takes frequent naps, and cannot walk a full city block. Accordingly, the Board finds the Veteran's residuals of NHL are nearly constant and restrict routine daily activities from 50 to 75 percent of the pre-illness level; thus, a 40 percent rating is warranted for residuals of NHL. The Board acknowledges the July 2019 and April 2021 VA examination but accords little probative weight to both examinations because the July 2019 examination report is internally inconsistent and the April 2021 VA examiner failed to consider the Veteran's competent and credible lay statements regarding symptoms of chronic fatigue. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The Board finds a rating in excess of 40 percent for residuals of NHL is not warranted as the evidence of record does not support finding the Veteran's symptoms restrict routine daily activities to less than 50 percent of the pre-illness level or result in periods of incapacitation of at least six weeks total duration per year. Notably, the Veteran asserted that he is able to perform 50 to 70 percent of his pre-illness activities and, although limited, is still able to play golf, perform outdoor activities, and walk short distances. See December 2015, NOD. 3. Entitlement to an initial rating of 20 percent, but no higher, for service-connected peripheral neuropathy of the left lower extremity. 4. Entitlement to an initial rating of 20 percent, but no higher, for service-connected peripheral neuropathy of the right lower extremity. The Veteran contends he is entitled to an initial rating in excess of 10 percent prior to March 15, 2021, and in excess of 20 percent thereafter for peripheral neuropathy of the right and left lower extremities, currently rated under DC 7715-8520. Diagnostic Code 8520 assigns an 80 percent rating for complete paralysis of the sciatic nerve; foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. After review of the evidence of record, the Board finds that an initial rating of 20 percent for peripheral neuropathy of the right and left lower extremities is warranted throughout the appeal period. VA treatment records note the Veteran's numerous complaints of significant bilateral peripheral neuropathy of the lower extremities with chronic foot pain, burning, numbness, and difficulty with mobility and comfort. Throughout the period on appeal, the Veteran has also been prescribed several medications peripheral neuropathy. See VA treatment records dated October 2015, December 2016, July 2017, March 2019, July 2020, and February 2021. The VA examinations of record for peripheral nerves indicate the Veteran's complaints of constant, fiery, and burning pain of the bilateral lower extremities. The Veteran also stated that peripheral neuropathy was so severe that it interferes with his sleep and deters him from being more active. The April 2021 VA examination report noted an abnormal gait, mild paresthesias, moderate constant pain, severe intermittent pain, and moderate numbness of the bilateral lower extremities. See VA examinations dated September 2015, July 2019, and April 2021. Based on the evidence of record, the Board finds that the Veteran's right and left lower extremity peripheral neuropathy warrant an initial rating of 20 percent throughout the period on appeal. The Board finds the Veteran's lay statements concerning the severity of peripheral neuropathy of the bilateral lower extremities to be competent and credible. Resolving all reasonable doubt in the Veteran's favor, the Board finds the Veteran's disability picture most closely represents moderate, incomplete paralysis of the bilateral lower extremities. The Board finds that the Veteran is not entitled to an initial rating in excess of 20 percent for his right or left lower extremity peripheral neuropathy for any period during the appeal. The evidence of record reveals that the Veteran's right and left lower extremity peripheral neuropathy are manifested by moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The evidence of record does not support finding the Veteran's peripheral neuropathy was any more severe than moderate. There is no evidence the right and left lower extremity peripheral neuropathy are manifested by loss of strength, loss of reflexes, muscle atrophy, or complete paralysis. See VA examinations dated June 2015, September 2015, July 2019, and April 2021 (finding normal strength in the lower extremities, normal deep tendon reflexes, and no muscle wasting or atrophy). Inasmuch as the Board finds that the Veteran's right and left lower extremity peripheral neuropathy and associated symptoms are purely sensory, the Board is prevented from finding that his incomplete paralysis is any greater than moderate. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for right and left lower extremity peripheral neuropathy. TDIU 5. Entitlement to TDIU as of December 1, 2015. The Veteran also seeks TDIU, reporting that he has not been able to obtain or sustain gainful employment since the completion of chemotherapy for NHL due to chronic fatigue, urinary urgency, and peripheral neuropathy of the bilateral lower extremities productive of constant pain and numbness that interferes with his ability to sleep, stand, and perform daily activities. See November 2020, VA Form 21-8940; March 2018, VA Form 9; December 2015, NOD. VA Form 9. In light of the competent and credible lay evidence of record, the Board finds that entitlement to a TDIU is warranted throughout the appeal period. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). A "schedular" TDIU may be assigned pursuant to 38 C.F.R. § 4.16 (a) where the claimant's service-connected disabilities resulting in unemployability meet the criteria set forth in that section. The Board notes the Veteran has met the schedular criteria for an award of TDIU throughout the appeal period. 38 C.F.R. §§ 4.25, 4.16(a). (Continued on the next page) The Board finds that the Veteran is entitled to a TDIU based on his service-connected disabilities beginning December 1, 2015. The Board notes that the determination of whether a Veteran is unable to secure or follow substantially gainful occupation due to service-connected disabilities is a factual question rather than a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The evidence of record shows that the Veteran completed two years of college, worked at a grocery store for 15 years, and last worked in October 2013 as a part-time retail clerk at Good Will Industries. The Veteran stopped working due to the onset and chemotherapy for service-connected NHL. See November 2020, VA Form 21-8940; September 2015, VA examination. The Board affords significant probative value to Veteran's reports urinary urgency, severe constant pain, difficulty walking or standing due to pain, and difficulty staying awake due to chronic fatigue which would be vital in sedentary, non-sedentary, skilled, or unskilled labor. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an award of TDIU is warranted effective December 1, 2015. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.