Citation Nr: 21040033 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-54 377 DATE: July 2, 2021 ORDER Entitlement to a compensable rating for acute myelogenous leukemia (AML) is denied. FINDING OF FACT The Veteran's service-connected AML is in remission, he is not anemic, his hemoglobin was not measured at 10 gm/100ml, he does not have aplastic anemia requiring continuous mediation for control, and the Veteran has not experienced polycythemia vera, essential thrombocythemia, primary myelofibrosis, or chronic myelogenous leukemia. CONCLUSION OF LAW The criteria for an initial compensable rating for AML have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3 4.117, Diagnostic Codes (DCs) 7700, 7703, 7704, 7716, 7718, 7719. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to July 1977 and from November 1979 to November 1999 in the United States Navy. For his meritorious service, the Veteran was awarded (among other awards) the Navy Achievement Medal, Navy Commendation Medal, and Southwest Asia Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2018 and was remanded for further development. Specifically, the Board ordered that updated VA treatment records be obtained and that the Veteran undergo a new VA examination; both directives were completed. As remand directives, have been substantially complied with, the Board will proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for acute myelogenous leukemia (AML) The Veteran contends his AML disability is more severe than what is contemplated by the current noncompensable assigned evaluation. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate "staged" ratings may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's AML is rated under Diagnostic Code 7703. After the Board decision in November 2018, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the hematologic and lymphatic systems. The effective date of the rule is December 9, 2018. The final rule updated medical terminology, added certain hematologic diseases, and provided detailed and updated criteria for evaluating conditions pertaining to the hematologic and lymphatic systems. In cases where rating criteria are amended during the course of the appeal, as in this case, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the rating criteria effective prior to December 9, 2018, 38 C.F.R. § 4.117, Diagnostic Code 7703 (leukemia) provided that a 100 percent rating is warranted with active disease or during the treatment phase. Otherwise, the adjudicator is to rate the disability as anemia (Diagnostic Code 7700) or aplastic anemia (Diagnostic Code 7716), whichever would result in the greater benefit. 38 C.F.R. § 4.117, Diagnostic Code 7703 (in effect prior to December 9, 2018) Under the applicable rating criteria in effect prior to December 9, 2018, anemia is rated under Diagnostic Code 7700. A noncompensable rating is warranted for asymptomatic anemia with a hemoglobin level of 10gm/100ml or less. A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted for a hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is warranted for a hemoglobin level of 7gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). A 100 percent rating is warranted for a hemoglobin level of 5gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117, Diagnostic Code 7700 (in effect prior to December 9, 2018). Under the applicable rating criteria in effect prior to December 9, 2018, aplastic anemia is rated under Diagnostic Code 7716. Aplastic anemia requiring continuous medication for control is rated 10 percent disabling. Anemia requiring transfusion of platelets or red cells, at least once per year but less than once every three months; or infections recurring at least once per year but less than once every three months warrants a 30 percent rating. Anemia requiring transfusion of platelets or red cells at least once every three months; or infections recurring at least once every three months warrants a 60 percent rating. Anemia requiring bone marrow transplant, or requiring transfusion of platelets or red cells at least once every six weeks, or infections recurring at least once every six weeks warrants a 100 percent rating. 38 C.F.R. § 4.117, Diagnostic Code 7716 (in effect prior to December 9, 2018). Effective December 9, 2018, the revised Diagnostic Code 7703 provides that a 100 percent rating is warranted with active disease or during the treatment phase. Chronic lymphocytic leukemia or monoclonal B-cell lymphocytosis (MBL), asymptomatic, Rai Stage 0 is rated as noncompensable. 38 C.F.R. § 4.117, Diagnostic Code 7703 (in effect since December 9, 2018). Note 1 to Diagnostic Code 7703 provides 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) of this chapter. If there has been no recurrence, rate on residuals. Note 3 provides that residuals of leukemia or leukemia therapy are to be evaluated under the appropriate diagnostic code(s). Myeloproliferative Disorders: (Diagnostic Codes 7704, 7718, 7719). Under the revised Diagnostic Code 7704 for polycythemia vera, a 10 percent rating is warranted when the condition requires phlebotomy 3 or fewer times per 12 month period or if requiring biologic therapy or interferon on an intermittent basis as needed to maintain all blood values at reference range levels. A 30 percent rating is warranted when the condition requires phlebotomy 4 to 5 times per 12-month period, or if requiring continuous biologic therapy or myelosuppressive agents, to include interferon, to maintain platelets <200,000 or white blood cells (WBC) 38 C.F.R. § 4.117, Diagnostic Code 7704 (in effect since December 9, 2018). Under Diagnostic Code 7718 for essential thrombocytopenia and primary myelofibrosis, a noncompensable evaluation is warranted if the condition is asymptomatic. Requiring continuous or intermittent myelosuppressive therapy, or chemotherapy, or interferon treatment to maintain platelet count of 200,000-400,000, or white blood cell (WBC) count of 4,000-10,000 warrants a 30 percent rating. Requiring continuous or intermittent myelosuppressive therapy, or chemotherapy, or interferon treatment to maintain platelet count <500 × 10 [9]/L warrants a 70 percent rating. Requiring either continuous myelosuppressive therapy or, for six months following hospital admission, peripheral blood or bone marrow stem cell transplant, or chemotherapy, or interferon treatment warrants a 100 percent rating. 38 C.F.R. § 4.117, Diagnostic Code 7718 (in effect since December 9, 2018). Note (1) to Diagnostic Code 7718 states that if the condition undergoes leukemic transformation, evaluate as leukemia under diagnostic code 7703. Note (2) states that a 100 percent evaluation shall be assigned as of the date of hospital admission for peripheral blood or bone marrow stem cell transplant; or during the period of treatment with chemotherapy (including myelosuppressants). Six months following hospital discharge or, in the case of chemotherapy treatment, six months after completion of 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. Under Diagnostic Code 7719 for chronic myelogenous leukemia (CML) (chronic myeloid leukemia or chronic granulocytic leukemia), a 30 percent rating is warranted if the condition is in apparent remission on continuous molecularly targeted therapy with tyrosine kinase inhibitors. Requiring intermittent myelosuppressive therapy, or molecularly targeted therapy with tyrosine kinase inhibitors, or interferon treatment when not in apparent remission warrants a 60 percent rating. Requiring peripheral blood or bone marrow stem cell transplant, or continuous myelosuppressive or immunosuppressive therapy treatment warrants a 100 percent rating. 38 C.F.R. § 4.117, Diagnostic Code 7719 (in effect since December 9, 2018). The rule also removed Diagnostic Code 7700 (Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) and added separate diagnostic codes (Diagnostic Codes 7720-7723) for the four major types of anemia that are neither hereditary nor secondary (addressed under the diagnostic code for the causative condition). In this case, the Veteran's treatment records reflect he was diagnosed with AML in April 2001. He underwent chemotherapy and stem cell transplant treatment. His treatment records reflect that in September 2002, the Veteran was in remission. Additionally, his recent VA treatment records reflect he is in remission. The Veteran underwent a video telehealth VA examination in June 2020. The VA examiner noted the Veteran was diagnosed with AML in April 2001. The VA examiner noted the Veteran does not have any current symptoms of AML, he is in remission and asymptomatic at Rai Stage 0. The VA examiner reported no continuous medication is required for control of a hematologic or lymphatic condition, including anemia or thrombocytopenia caused by treatment for a hematologic or lymphatic condition. The status of the Veteran's AML was reported to be in remission and he previously completed treatment and is in watchful waiting status; he had a bone marrow stem cell transplant in December 2001 and chemotherapy from May to December 2001. The VA examiner reported the Veteran does not have anemia or thrombocytopenia. The VA examiner also noted the Veteran does not have polycythemia vera. The VA examiner noted the Veteran reported he has chronic generalized weakness, lightheadedness, dizziness, headache, and brittle nails since chemotherapy. The Veteran underwent lab tests in December 2019. His hemoglobin level was measured at 14.7 gm/100ml. The VA examiner reported the Veteran does not have anemia and his CBC testing was normal. The VA examiner concluded there are no additional diagnoses warranted for any residuals of the Veteran's AML. Based on a review of the record, the Board finds that a compensable disability rating for AML is not warranted at any time since the effective date of service connection. As noted, Diagnostic Code 7703 prior to the revised regulation directs that in the absence of active leukemia, the disability should be evaluated under Diagnostic Code 7700 or 7716, whichever would result in the greater benefit. Here, the evidence does not demonstrate that the Veteran's leukemia has been active at any time during the period on appeal. The Veteran's June 2020 VA examination and VA treatment records (including government facility N.M.C. Laboratory Department) clearly indicate that the Veteran's AML has been in remission. The Veteran has not presented any evidence to the contrary. The revised Diagnostic Code 7703 directs that if there is no recurrence, the disability is to be rated on residuals. Looking at Diagnostic Code 7716, the Board finds that a compensable rating is not warranted. A review of the evidence of record does not show a diagnosis of aplastic anemia requiring continuous medication for control at any time during the period on appeal, and the Veteran has also not alleged that he has aplastic anemia that requires continuous medication for control. Further, he has not presented any evidence to show that he has aplastic anemia that requires medication. The evidence also shows that a compensable rating prior to December 9, 2018 under Diagnostic Code 7700 is not warranted. The Veteran has not been diagnosed with hypochromic-microcytic and megaloblastic anemia with hemoglobin 10 gm/100 ml (g/dL) or less. The record does not show evidence of a diagnosis of anemia, and hemoglobin levels, as shown in private treatment records, VA treatment records and the June 2020 VA examination, have not been shown to be 10 gm/100 ml (g/dL) or less at any time during the period on appeal. As there has been no evidence of hemoglobin findings of 10 gm/100 ml (g/dL) or less, the Board finds that the evidence does not more nearly approximate a compensable rating under the criteria for Diagnostic Code 7700. As such, a compensable rating under Diagnostic Code 7700 is not warranted. Under the revised criteria, effective December 9, 2018, Diagnostic Code 7704 for polycythemia vera and Diagnostic Code 7719 for chronic myelogenous leukemia do not provide for a compensable rating as the evidence does not show that the Veteran has been diagnosed with polycythemia vera or chronic myelogenous leukemia. A compensable rating is also not warranted under Diagnostic Code 7718. The VA treatment records, private treatment records, and June 2020 VA examination do not show any evidence that the Veteran requires continuous or intermittent myelosuppressive therapy, or chemotherapy, or interferon treatment to maintain platelet count of 200,000-400,000, or white blood cell count of 4,000-10,000. The Board finds that there are no other appropriate diagnostic codes which would provide for a compensable rating. Thus, a compensable rating is not warranted under either the old or the revised rating criteria. The Board has also considered the Veteran's lay statements that his AML warrants a higher rating. The Veteran reported his AML caused weakness, lightheadedness, dizziness, headaches, and brittle nails since chemotherapy. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of this disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his AML has been provided by the medical personnel who have examined him during the period on appeal, and who have rendered pertinent opinions in conjunction with the evaluations. To the extent the Veteran claims that his AML has caused weakness, lightheadedness, dizziness, headaches, and brittle nails, there is no competent evidence to support these contentions. As detailed above, the laboratory findings are within normal limits and the June 2020 examiner specifically found that there was no evidence of anemia or any other residual diagnoses related to his AML disability. The medical findings directly address the criteria under which this disability is evaluated. Moreover, as the examiners possess the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base their conclusions, the Board finds the VA medical opinion to be more probative in evaluating the Veteran's AML. In sum, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for the service-connected AML at any point during the period on appeal. The benefit-of-the-doubt rule is, therefore, not applicable, and an initial compensable rating for AML is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, in conjunction with the appeal for a higher initial rating for AML, the Veteran has not raised any other related issues, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.