Citation Nr: 21054551
Decision Date: 09/02/21	Archive Date: 09/02/21

DOCKET NO. 17-10 710A
DATE: September 2, 2021

ORDER

Restoration of a 100 percent rating effective January 1, 2019, for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, is denied.

Entitlement to a disability evaluation in excess of 30 percent for service-connected insomnia disorder is denied.

Entitlement to a disability evaluation in excess of 80 percent for service-connected stage III kidney failure with hypertension is denied.

Entitlement to a disability evaluation in excess of 30 percent for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, is denied.

Entitlement to an effective date later than January 1, 2019 for the rating reduction for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, stats post splenectomy to 30 percent disabling is denied.

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for tinnitus is remanded.

Entitlement to service connection for chronic sinusitis is remanded.

Entitlement to service connection for bilateral pes planus is remanded.

Entitlement to an initial compensable disability evaluation prior to January 14, 2020, and to a disability evaluation in excess of 10 percent thereafter, for service-connected splenectomy scar is remanded.

Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

Entitlement to special monthly compensation (SMC) based on housebound criteria effective January 1, 2019, to include whether the RO's discontinuance of SMC prior thereto was proper, is remanded.

FINDINGS OF FACT

1. The evidence of record at the time of the reduction of rating of myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, shows that the Veteran's condition was in remission and therefore shows material improvement in the disability.

2. The preponderance of the evidence of record reflects that the Veteran's insomnia disorder did not manifest by symptoms causing occupational and social impairment with reduced reliability and productivity.

3. The preponderance of the evidence of record reflects that the Veteran's stage III kidney failure with hypertension did not manifest as renal dysfunction requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8 mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular.

4. The preponderance of the evidence of record reflects that the Veteran's myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy does not reflect that it manifested by requiring transfusion of platelets or red cells on average at least once every three months per 12-month period, infections recurring on average at least once every three months per 12-month period, or continuous therapy with immunosuppressive agent or newer platelet stimulating factors.

5. The date of the rating reduction, January 1, 2019, to 30 percent for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, is the first day after December 2018, the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expired.

CONCLUSIONS OF LAW

1. The criteria for restoration of a 100 percent disability evaluation for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 3.343, 3.344, 4.117, Diagnostic Codes 7799-7703, 7703-7716.

2. The criteria for entitlement to a disability evaluation in excess of 30 percent for service-connected insomnia disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9326. 

3. The criteria for entitlement to a disability evaluation in excess of 80 percent for service-connected stage III kidney failure with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.115A, 4.115B, Diagnostic Code 7541.

4. The criteria for entitlement to a disability evaluation in excess of 30 percent for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.117, Diagnostic Code 7703-7716.

5. The criteria for an effective date later than January 1, 2019, for the rating reduction for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, stats post splenectomy to 30 percent disabling have not been met. 38 U.S.C. §§ 5112, 5107; 38 C.F.R. §§ 3.102, 3.105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1985 to November 1985. Evidence affiliated with the claims file also reflects that the Veteran served in the Reserve from April 2003 to April 2006.

These matters again come before the Board of Veterans' Appeals (Board) on appeal from July 2016 and October 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The matter of entitlement to service connection for bilateral pes planus was denied by the Board in a January 2019 decision. The Veteran appealed and the parties agreed to a Joint Motion for Remand (JMR). The United States Court of Appeals for Veterans Claims (Court) granted the JMR in a February 2020 order, which vacated and remanded the January 2019 Board decision. The Board then remanded this matter again in December 2020.

The matters of entitlement to service connection for bilateral hearing loss, tinnitus, and chronic sinusitis, in addition to the matters of entitlement to an increased disability evaluation for insomnia, splenectomy scar, and TDIU, were remanded by the Board in the same January 2019 decision that denied service connection for bilateral pes planus.

The matters of entitlement to service connection for bilateral pes planus, entitlement to an earlier effective date prior to January 1, 2019, for the award of a 30 percent disability evaluation for the Veteran's service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, entitlement to an increased disability evaluation for myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, TDIU, and entitlement to SMC based on housebound criteria, were remanded by the Board in a December 2020 decision.

Rating Reduction

Myelofibrosis and Acute Myelogenous Leukemia with Chronic Fatigue, Status Post Splenectomy

Congress has provided that a Veteran's rating disability shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. The provisions of 38 C.F.R. § 3.344 pertain to improvements. However, total ratings will not be reduced in the absence of clear error, without examination showing material improvement in the disability under the ordinary conditions of life while working or actively seeking work. 38 C.F.R. § 3.343(a); see also Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000).

For ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. 38 C.F.R. § 3.344(c). For ratings in effect for five years or more, 38 C.F.R. § 3.344(a) and (b) apply. The relevant period for this purpose is calculated form the effective date of the establish of the former rating to the effective date of the reduction. Therefore, as the Veteran's 100 percent rating for myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, was in effect from January 31, 2016, to January 1, 2019, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable to this appeal.

With respect to reductions of 100 percent disability ratings, 38 C.F.R. § 3.343 sets forth additional protective procedures that the RO must follow prior to implementing a proposed rating reduction. It provides that such total ratings will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. 38 C.F.R. § 3.343(a). This regulation applies only to total disability ratings warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment or individual unemployability. Id.

In considering the propriety of a reduction, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The rating specialist is responsible for interpreting the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. These provisions impose a clear requirement that rating reductions be based on the entire history of the Veteran's disability. Brown v. Brown, 5 Vet. App. 413 (1993).

The rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of the evidence weighs against the claim. Brown, 5 Vet. App. at 413.

Turning to the disability ratings themselves, disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from said disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It two ratings are potentially applicable the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

The Veteran's myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, has been rated under Diagnostic Codes 7799-7703 and 7703-7716. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further details regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and the anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Hence, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Thus, the Veteran's myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, is evaluated as leukemia (except for chronic myelogenous leukemia) with residuals rated analogous to aplastic anemia.

Under DC 7703, a 100 percent disability rating is assigned when there is active disease or during a treatment phase until approximately six months after discontinuance of such treatment, at which time the appropriate disability rating shall be determined by mandatory VA examination. If inactive, the associated residuals are rated under the appropriate diagnostic code(s). See 38 C.F.R. § 4.117, Diagnostic Code 7703, Note (1).

Under DC 7716, a minimum 30 percent evaluation is warranted for aplastic anemia requiring transfusion of platelets or red cells, on average, at least once per 12-month period; or infections recurring, on average, at least once per 12-month period. A 60 percent disability evaluation is warranted for aplastic anemia requiring transfusion of platelets or red cells, on average, at least once every three months per 12-month period; or infections recurring, on average, at least once every three months per 12-month period; or using continuous therapy with immunosuppressive agent or newer platelet stimulating factors. A maximum 100 percent disability evaluation is warranted for aplastic anemia requiring peripheral blood or bone marrow stem cell transplant; or requiring transfusion of platelets or red cells, on average, at least once every six weeks per 12-month period; or infections recurring, on average, at least once every six weeks per 12-month period. Note (2) of DC 7716 defines "newer platelet stimulating factors" to include medication, factors, or other agents approved by the United States Food and Drug Administration.

In this case, a 100 percent disability evaluation was assigned by the RO in a July 2016 rating decision effective January 31, 2016, based on the available medical evidence of record indicating that the Veteran's condition had been in remission prior to January 31, 2016 and that in January 2016, the Veteran's cancer had relapsed. Additionally, the June 2016 VA examiner found that the Veteran's myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy was active and that the Veteran had undergone chemotherapy treatment for his condition which concluded in May 2016. The examiner also noted that the Veteran had anemia as a residual of his condition and that he required transfusion of platelets or red blood cells at least once per year but less than once every three months. The Veteran also exhibited weakness and easy fatigability.

However, on examination in July 2017, the Veteran's condition was noted to be in remission and that he was no longer undergoing any treatment for his myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy. The examiner found that the Veteran did not have anemia but had residuals of weakness and easy fatigability. Moreover, the examiner concluded that the Veteran had recurring infections at least once per year but less than once every three months. Even though the examiner noted that the Veteran's myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy negatively impacted his ability to work, the Veteran was working full time.

Upon review of the evidence of record, the Board has determined that remission of the Veteran's service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy shows a material improvement in his condition. Further, the Veteran has continued working as noted in the July 2017 examination. None of the Veteran's medical records after May 2016 indicate another relapse of his condition. Therefore, the Board finds that the evidence of record reflects a material improvement in the Veteran's disability, including an improvement in the ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 413; 38 C.F.R. §§ 4.2, 4.10.

Considering the above, the Board finds that the evidence of record at the time of rating reduction, in addition to subsequent evidence, shows that the reduction in evaluation of the Veteran's service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy showed actual material improvement. Therefore, the rating reduction was proper.

Therefore, the criteria for restoration of the Veteran's 100 percent evaluation for service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy are not met. The preponderance of the evidence weighs against the Veteran's claim in this matter, and therefore the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation of illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Separate Diagnostic Codes (DCs) identify various disabilities and the criteria for separate ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

Insomnia Disorder

As a preliminary matter, the Board notes that the RO awarded the Veteran a 30 percent disability evaluation for his service-connected insomnia disorder in a February 2017 rating decision. The Board will not disturb this favorable finding.

The Veteran's insomnia disorder has been rated pursuant to Diagnostic Code 9326, which is defined in the regulation as a "[m]ajor or mild neurocognitive disorder due to another medical condition or substance/medication-induced major or mild neurocognitive disorder." See 38 C.F.R. § 4.130, Diagnostic Code 9326.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms that are linked to specific disability percentages. Then, the Board must determine whether the associated symptoms both listed and unlisted cause the level of occupational and social impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-18 (Fed. Cir. 2013).

Accordingly, there are two elements that must be met to assign a particular rating under the General Formula: (1) symptoms equivalent in severity, frequency, and duration to symptoms corresponding to the given rating; and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118.

Under the General Formula, mental disorders are evaluated as follows:

	A 30 percent rating is assigned when symptoms such as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events) cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal.

	A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

	A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood.

	A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name cause total occupational and social impairment. 38 C.F.R. § 4.130, Diagnostic Code 9326.

When the Veteran was first evaluated in June 2016, he was noted to have complained of sleeping difficulty in his prior medical records. He reported that he was "pretty happy" but that his sleeping issues caused some decrease in patience and increase in irritability. He noted that he was working and liked his job and his co-workers. At night, his onset of sleep was delayed by ringing in the ears and that his mind is "going" about "everything," including his other health conditions. He also noted that he would wake up "quite a few times" during the night without knowing why. As a result, he would feel "groggy," and need to go to bed earlier to try to get enough sleep, which in turn decreased the time he would spend with his family. The Veteran told the examiner that his memory is "usually pretty good."

During the examination, the Veteran reported that his father was hard on him during his upbringing, but he had been married for approximate 28 years and fathered three children. He characterized his marriage as "pretty good," noting that they have had their ups and downs. He also told the examiner that he had "a few friends," including one really good friend and a lot of work friends. When asked about his occupational and educational history, the Veteran stated that he was an average student who had "no issues" with teachers or peers and that he had taken some college courses during his military service. He noted that he started working after obtaining his driver's license and that following his departure from the military, the Veteran worked at one position for approximately eight months during which he reported issues of supervisors and colleagues using drugs and alcohol. He then went to work at another position for approximately 10 years until the company he was employed by was purchased by another company and demoted him to night shift maintenance from a chief engineer position. He then moved to his current position in 2006.

The June 2016 examiner found that the Veteran exhibited only one symptom for rating purposes: chronic sleep impairment. On examination, the Veteran presented early and was casually dressed and appropriately groomed. He was able to correctly spell the word "world" forward but not backward. He could not finish the serial 7s test but was able to recall two out of three words after delay and three out of three words with prompting. The Veteran showed cooperative behavior with the assessment process and his mood and affect were full-range and appropriate to content. He also exhibited good eye contact and his speech was normal in rate and tone, spontaneous, and goal-directed. The examiner found his thought processes to be organized with no evidence of formal thought disorder, hallucinations, mania, or delusions. The Veteran appeared to be of average intelligence with capacity for abstract thought and good insight into his emotional functioning.

After evaluating the Veteran and reviewing his medical records, the examiner concluded that his insomnia caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.

During a September 2016 visit to his VA provider, the Veteran's doctor found that he had "occasional insomnia." See September 2016 VA Primary Care Outpatient H&P Note.

In a December 2016 statement, the Veteran reported a decrease in his memory and more severe sleep impairment along with daytime fatigue. He stated that he has "difficulty getting going in the mornings and at work." See December 2016 VA Form 21-4138.

When he visited his VA provider again in September 2017, the Veteran stated that he had insomnia and would wake up every two hours or so. See September 2017 VA Physician Note.

The Veteran was again examined for his insomnia disorder in November 2019, at which time he reported that his sleep remained poor due to repeated awakenings throughout the night due to his physical conditions. He stated that his sleep was unrefreshing with limited "deep sleep." He would set three alarms and have to "drag [himself] out of bed" for work each morning and that on weekend days wherein he did not work, he would remain in bed for several extra hours. He noted struggling with attention and concentration in the mornings and often flexed his time and work on more intensive tasks from home later in the day. He denied any depressive or anxiety symptoms and stated his mood was "usually good 90% of the time" and that he would get "a little grumpy . . . frustrated" for the remainder of the time but worked to not let his moods negatively impact others. He shared that his frustration was due to the decline in his overall quality of life due to his medical issues and stated that he was "always just wiped out."

When asked about his relationships, the Veteran reported that he remained married to his wife of over 30 years with whom he has three children and one grandson. He stated that his marriage has remained strong and that he has close relationships with his children. He noted that his daughter and grandson would visit frequently, but that due to his decreased energy and physical limitations due to his medical issues, he has been unable to join his son (who was now living closer to home) in more physical activities. He also stated that he has one really good friend but was less active in his former hobbies and activities due to his physical limitations. The Veteran also told the examiner that he remained employed full-time with his current employer and indicated that he would like to remain employed there until retirement.

The November 2019 examiner found that the Veteran exhibited only one symptom for rating purposes: chronic sleep impairment. On examination, the Veteran appeared casually dressed and well groomed. He was alert and fully oriented, showing no gross memory impairments or attentional difficulties. He interacted with the examiner in a pleasant manner and was cooperative with the assessment process. His mood was euthymic with congruent affect and his frustration with his ongoing physical issues were "evident." The Veteran displayed good eye contact and minimal psychomotor agitation. His speech was normal in rate and tone, spontaneous and goal-directed. His thought processes were organized with no evidence of formal thought disorder, hallucinations, delusions, mania, or obsessive-compulsive features. The examiner found the Veteran to be of average intelligence, with capacity for abstract thought and good insight into his emotional functioning. The Veteran denied suicidal ideation, homicidal ideation, or panic attacks.

After examining the Veteran and reviewing his medical records, the examiner concluded that the Veteran's insomnia disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

The examiner remarked that since the Veteran's June 2016 examination, his life has remained relatively stable with regards to family and social relationships in addition to employment. His current examination revealed his insomnia continued due to the disruptive impact of his renal issues. His sleep has remained poor, with middle insomnia resulting in chronic daytime fatigue, diminished concentration, and reduced involvement in pleasurable activities. However, he adapted his work schedule to maximize his productivity by working from home later in the day due to his sleepiness during morning hours. Overall, the examiner concluded that the Veteran's prognosis for substantial improvement of his insomnia disorder and functional status is fair; however, given the complexity of his other medical conditions, even with more restorative sleep, the continued presence of disruptive fatigue was likely.

Finally, during a November 2019 consult, the Veteran reported feeling physical tension in bed, but no insomnia was noted other than his prior history of the condition. See November 2019 VA Sleep Medicine Consult.

The Board finds that the evidence more nearly approximates entitlement to a 30 percent disability evaluation for his insomnia disorder. At no time during the appellate period has the Veteran shown symptoms of a mental condition that is afforded a 50 percent disability rating and even though the Veteran stated that his memory was impaired due to his insomnia, the examiners found no evidence of such an impairment for rating purposes. He also continued to maintain good relationships with his wife and children and to have friends. He also reported remaining employed with the same company since 2006, well over a decade, and that his relationships with co-workers and supervisors were not impacted by his insomnia. Additionally, his mood and affect were normal, and he could maintain his personal hygiene. He was not disoriented in any spheres and showed no signs of suicidal ideation, anxiety, or depression. Both examiners concluded that the Veteran's condition did not cause occupational and social impairment with reduced reliability and productivity, which equates to a 50 percent disability evaluation.

Also, during no point in the pendency of this appeal has the Veteran exhibited symptoms regarding his insomnia disorder to cause total occupational and social impairment. He has not shown gross impairment in thought processes or communications, delusions or hallucinations of any kind, inability to perform activities of daily living or maintain minimal personal hygiene, disorientation to time or place, or memory loss for names of closer relatives, his own occupation, or his own name. Again, the Veteran has continuously worked for the same employer since 2006 and his relationships with his family and friends are overall positive and supportive. Therefore, the Veteran's insomnia disorder has not manifested in a way that would cause total occupational and social impairment which would equate to a 100 percent evaluation.

Thus, the Board finds that entitlement to a disability evaluation in excess of 30 percent for his service-connected insomnia disorder is not warranted. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.103, DC 9326.

Stage III Kidney Failure with Hypertension

The Veteran's stage III kidney failure with hypertension is rated under 38 C.F.R. § 4.115B, Diagnostic Code 7541. DC 7541 directs that renal involvement in diabetes mellitus, sickle cell anemia, systemic lupus erythematosus, vasculitis, or other systemic disease processes be rated as renal dysfunction pursuant to 38 C.F.R. § 4.115A.

Renal dysfunction under 38 C.F.R. § 4.115A provides that an 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of motion. A maximum 100 percent evaluation is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. §§ 4.115A, 4.115B, Diagnostic Code 7541.

In March 2017, the Veteran's creatinine was measured to be 1.9 mg/dL. See March 2017 VA Addendum to September 2016 Records.

During his initial April 2017 examination, the Veteran exhibited the following signs and symptoms of renal dysfunction: recurring proteinuria (albuminuria); persistent edema; and generalized poor health characterized by anorexia, weight loss, lethargy, and limitation of exertion. The examiner also characterized the Veteran's condition as showing markedly decreased function of other organ systems. Specifically, the examiner found that the Veteran's lungs were affect as he had been "short of breath" and that his cholesterol and triglycerides have been rising, causing concern about cardiac damage. However, the examiner did not find that the Veteran's condition precluded more than sedentary activity.

The examiner also found that the Veteran had pyonephrosis (frequent attacks of colic with infection) and viral infections of the kidneys during a previous hospitalization along with hematuria. The examiner further observed urolithiasis in both the Veteran's kidneys and bladder but that he underwent no treatment for recurrent stone formation. The Veteran's lab readings showed BUN of 26 mg/dL and creatinine of 1.92 mg/dL.

A September 2017 VA Physician Note and Addendum reflect that the Veteran's creatinine measured 2.2 mg/dL.

November 2018 letters from VA to the Veteran reflect that his BUN measured 31 mg/dL and creatinine measured 2.0 mg/dL.

In January 2019, the Veteran's labs indicated a BUN of 30 mg/dL and creatinine of 1.80 mg/dL. On repeat labs that August, the Veteran's BUN measured 25 mg/dL and creatinine measured 2.23 mg/dL.

September 2019 lab results for the Veteran also reflect BUN of 29 mg/dL and creatinine of 2.1 mg/dL.

The Veteran was again evaluated for his condition in November 2019, at which time he was noted to have fatigue and that his job was not physical but involved traveling and supervising. He also stated that he was taking continuous medication for the hypertension involved in the Veteran's kidney disorder. The examiner found that the Veteran's stage III kidney failure did not require regular dialysis, but the Veteran exhibited the following renal dysfunction signs and symptoms: some edema; generalized poor health characterized by lethargy, weakness, anorexia, and limitation of exertion. The Veteran also has hypertension and/or heart disease due to renal dysfunction; however, again, the examiner did not find that the Veteran's condition precluded him from doing more than sedentary activity.

The November 2019 examiner did not report whether labs were taken during the examination, but he reviewed the Veteran's September 2019 lab results, which are indicated above. The examiner did not observe renal tubular disorder that was symptomatic; pyonephrosis; urolithiasis; urinary tract infection; or kidney transplant or removal.

After the November 2019 examination, an April 2020 VA nephrology note indicates that the Veteran's creatinine measured 1.8 mg/dL in January 2020. September 2020 labs reflect that the Veteran's creatinine measured 1.87 mg/dL.

The Board finds that entitlement to a 100 percent disability evaluation for the Veteran's stage III kidney failure with hypertension is not warranted. At no time during the period on appeal have the Veteran's medical records reflected BUN of more than 80 mg% or creatinine of more than 8 mg%. Even though the Veteran's April 2017 examiner found markedly decreased function of the Veteran's other organ systems, the examined did not find that this or the other exhibited signs and symptoms of renal dysfunction precluded him from more than sedentary activity.

However, the Veteran's examinations affiliated with the claims file indicate that he is in generalized poor health as characterized by lethargy, weakness, anorexia, weight loss, and limitation of exertion. See April 2017 and November 2019 C&P Examinations. Consequently, the Board finds that the Veteran's currently 80 percent evaluation is most appropriate.

The Board also acknowledges the Veteran's assertion that he cannot exercise due to his kidney disability. See August 2020 VA Form 21-4138 (received in March 2021). However, again, the Veteran's condition does not preclude more than sedentary activity. Furthermore, the medical evidence of record does not reflect that the Veteran has undergone regular dialysis for his disability.

Accordingly, the Board finds that a preponderance of the evidence weighs against entitlement to a 100 percent disability evaluation. Consequently, the Veteran's claim for entitlement to a disability evaluation in excess of 80 percent is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.

Myelofibrosis and Acute Myelogenous Leukemia with Chronic Fatigue, Status Post Splenectomy

As noted above, under DC 7716, a minimum 30 percent evaluation is warranted for aplastic anemia requiring transfusion of platelets or red cells, on average, at least once per 12-month period; or infections recurring, on average, at least once per 12-month period. A 60 percent disability evaluation is warranted for aplastic anemia requiring transfusion of platelets or red cells, on average, at least once every three months per 12-month period; or infections recurring, on average, at least once every three months per 12-month period; or using continuous therapy with immunosuppressive agent or newer platelet stimulating factors. A 100 percent disability evaluation is warranted for aplastic anemia requiring peripheral blood or bone marrow stem cell transplant; or requiring transfusion of platelets or red cells, on average, at least once every six weeks per 12-month period; or infections recurring, on average, at least once every six weeks per 12-month period. Note (2) defines "newer platelet stimulating factors" to include medication, factors, or other agents approved by the United States Food and Drug Administration.

In the Board's December 2020 decision, the Board noted inconsistencies between the Veteran's September 2019 and January 2020 examinations regarding his diagnosis and current residuals. Accordingly, the Board requested a new opinion as to the nature and severity of his service-connected disability.

The Veteran was evaluated in April 2021, at which time the examiner noted that the Veteran's condition continued to be in remission. The examiner found that the Veteran exhibited essential thrombocythemia or primary myelofibrosis as a residual of his service-connected disability, but that he was asymptomatic. When inquired as to the impact of the Veteran's myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy on his ability to work, the examiner found that "[t]he Veteran often has fatigue which causes decreased focus on work related tasks." See April 2021 VA C&P Examination. In his attached opinion, the examiner concluded that the Veteran's residual fatigue from his myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy was mild.

Accordingly, because the Veteran's disability is in continued remission and his medical records do not indicate a recurrence of his condition, the Board finds that the current 30 percent evaluation is appropriate. During no time at the appellate period has the Veteran shown that his condition required transfusion of platelets or red cells on average at least once every three months per 12-month period, infections recurring on average at least once every three months per 12-month period, or continuous therapy with immunosuppressive agent or newer platelet stimulating factors, thereby entitling him to a 60 percent disability evaluation.

Therefore, the Veteran's claim for entitlement to a disability evaluation in excess of 30 percent for his service-connected myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, is denied. The preponderance of the evidence weighs against his claim, and as such the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.

Effective Date

Rating Reduction

38 U.S.C. § 5112 states that the effective date of a reduction or discontinuance of compensation by reason of change in physical condition shall be the last day of the month following sixty days from the date of notice to the payee at the payee's most recent address of record of the reduction or discontinuance. 38 U.S.C. § 5112(b)(6).

When evaluating whether a rating reduction is proper, the RO must follow certain procedural steps. Specifically, when a rating reduction would result in a reduction or discontinuance of compensation payments being made, the RO must prepare a rating proposing the reduction or discontinuance setting forth all material facts and reasons and notify the beneficiary of this proposal at his or her latest address of record. See 38 C.F.R. § 3.105(e). The beneficiary will then be given 60 days from the date of notification of the proposed reduced rating to present additional evidence to show that compensation payments should be continued at their present level. Id. Said notice should also inform the beneficiary of his or her right to a predetermination hearing, which must be requested within 30 days to the notice to continue the benefits at the current rate. See 38 C.F.R. § 3.105(i).

If additional evidence and/or a hearing request is/are not provided within the above-noted periods, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. See 38 C.F.R. § 3.105(e).

Here, the RO proposed the rating reduction for the Veteran's myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy in an August 2017 rating decision. Later that month, the Veteran was notified of the proposed rating reduction. See August 2017 Notification Letter. In the notification letter, the RO not only informed the Veteran of his right to obtain a personal hearing if requested within 30 days from the date of letter, but also notice that if evidence was not received within 60 days from the date of the letter, his evaluation would be reduced. See id. Thus, the August 2017 notice to the Veteran was proper.

There is no indication in the claims file that the Veteran submitted additional evidence within 60 days or a hearing request within 30 days from the date of the August 2017 Notification Letter. In an October 2018 rating decision, the RO reduced the Veteran's evaluation of myelofibrosis and acute myelogenous leukemia with chronic fatigue, status post splenectomy, from 100 percent disabling to 30 percent disabling effective January 1, 2019.

The RO sent the Veteran notice of the final rating action to reduce the Veteran's compensation in October 2018, making December 2018 the month in which the 60-day period following notice of the final rating action expired. The RO reduced the Veteran's evaluation effective January 1, 2019.

Here, the Board notes that the statute and regulation provide that rating reductions will be effective "the last day of the month" in which the 60-day period following notice of the final rating action expires. See 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(e). As noted above, the 60-day period following notice of the final rating action expired in December 2018. Nevertheless, the RO made the rating reduction effective the first day of the month following the expiration of the 60-day period of notice. See October 2018 Rating Decision; October 2018 Notification Letter.

Accordingly, as the RO favored the Veteran by continuing his 100 percent payments until January 1, 2019 instead of the last day of December 2018, the Board will not disturb this favorable finding. The Board finds that January 1, 2019, is the proper effective date for the Veteran's rating reduction to 30 percent for service-connected myelofibrosis and acute leukemia with chronic fatigue, status post splenectomy. 38 U.S.C. § 5112; 38 C.F.R. § 3.105.

REASONS FOR REMAND

Hearing Loss

Tinnitus

Chronic Sinusitis

Bilateral Pes Planus

As noted above, there is evidence of record reflecting that the Veteran served in the Reserve from April 2003 to April 2006. Although there are service medical records and personnel records affiliated with the claims file revealing the Veteran's education, performance, assignments, points, and awards, the precise dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) are not available. On remand, the RO should confirm the Veteran's periods of ACDUTRA and INACDUTRA and obtain any and all outstanding Reserve medical records.

Because the Veteran served in the Reserve, the Board notes that there is a question as to whether his conditions could be linked to his ACDUTRA and/or INACDUTRA. Therefore, the Board requests addendum opinions addressing this.

The Board previously found the Veteran's June 2016 examination discussing his hearing loss and tinnitus to be inadequate and consequently requested an addendum opinion. See January 2019 Board Decision. The Board acknowledges receipt of a November 2019 opinion; however, the Board finds this opinion to be inadequate as well. Because the Board notes that the Veteran served in the Reserve and that there could be outstanding Reserve medical records, the Board finds that this opinion was not based on review of all relevant, pertinent evidence of record. Therefore, a new opinion must be obtained.

The Board also requested in its January 2019 remand a new opinion regarding secondary service connection for the Veteran's sinusitis. See January 2019 Board Decision. However, again, the Board finds this opinion to be inadequate. The examiner, in her rationale regarding aggravation, states that there is "[n]o documentation found indicating that [the Veteran's] chronic sinusitis has progressively worsened since his diagnosis of myelofibrosis [with acute myelogenous leukemia." An examiner cannot rely on lack of documentation to formulate an opinion. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (citing Horn v. Shinseki, 25 Vet. App. 231 (2012)). Thus, a new opinion should be obtained on remand regarding both direct and secondary service connection for chronic sinusitis.

Regarding the Veteran's claim for bilateral pes planus, the Board requested in its December 2020 remand a new opinion regarding the nature and etiology of his condition and whether it was due to his complete time in service. See December 2020 Board Decision. As with the Veteran's November 2019 opinion regarding his bilateral hearing loss and tinnitus, the April 2021 opinion obtained on remand did not review and consider all relevant, pertinent evidence of record to determine whether the Veteran's ACDUTRA and/or INACDUTRA caused his current condition. Furthermore, as with the November 2019 sinusitis opinion, the April 2021 opining clinician relied on a lack of documentation in service of pes planus to formulate his opinion. See Fountain, 27 Vet. App. at 272. Accordingly, the Board finds that a new opinion should be obtained on remand. 

Splenectomy Scar

Concerning the Veteran's claim for entitlement to increased disability evaluations for his splenectomy scar, the Board notes that there are three examinations of record taken after the January 2019 remand. The first, provided in November 2019, indicated that the Veteran's scar measured 30.0 cm by 1.5 cm with an approximate total area of 45.0 sq. cm. The examiner also found that the scar did not exhibit any evidence of underlying tissue damage. However, during a January 2020 examination, the examiner found that the Veteran's scar measured 35 cm by 2 cm, the scar had underlying soft tissue damage (specifically, muscle dehiscence underlying the incision), and that it had an approximate total area of 425 sq. cm.

Finally, an April 2021 examination reflects that the Veteran's scar measured 38 cm by 0.4 cm with an approximate total area of 15.2 sq. cm. The examiner did not indicate as to whether the scar had underlying soft tissue damage.

These inconsistencies between examinations, including noting the approximate total area of the scar and whether the scar had any underlying soft tissue damage, evidence an inability to ascertain the severity of the Veteran's splenectomy scar. Therefore, the Board finds that a new opinion regarding the severity of the Veteran's splenectomy scar be obtained on remand, specifically to reconcile any and all inconsistencies in the Veteran's VA examinations of record.

TDIU

SMC

Because the issues of TDIU and SMC, including whether the reduction of SMC was proper, could be significantly impacted by potential grants of service connection (which could lead to additional compensable disability ratings for the Veteran's conditions) and an increased disability evaluation of the Veteran's splenectomy scar, the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Therefore, because the Board is remanding the issues of entitlement to service connection for bilateral hearing loss, tinnitus, sinusitis, and bilateral pes planus, and the issue of entitlement to increased disability evaluations for the Veteran's service-connected splenectomy scar, the Board must also remand the Veteran's claims for TDIU and SMC based on housebound criteria for readjudication. 

The matters are REMANDED for the following action:

1. The RO should determine the specific dates of when the Veteran served on ACDUTRA and/or INACDUTRA. In this regard, a report detailing the Veteran's award of reserve retirement points will NOT represent compliance with this instruction. Rather, each and every date of active duty, ACDUTRA, and INACDUTRA must be verified. Then, issue a memorandum for inclusion in the claims file detailing each period of verified active military service, whether on active duty, ACDUTRA or INACDUTRA. Any and all outstanding medical treatment records associated with the Veteran's Reserve service, if any, should also be obtained.

2. Then, forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided.

(a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's bilateral hearing loss and/or tinnitus manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA.

(b) The clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable evidence) that the Veteran's bilateral hearing loss and/or tinnitus existed prior to service. If the clinician answers in the affirmative, the clinician should opine as to whether there is clear and unmistakable (i.e., medically undebatable) evidence that (i) there was no increase in disability during service or (ii) any increase in disability was due to the natural progress of the pre-existing bilateral hearing loss and/or tinnitus.

(c) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's tinnitus is either (i) caused or (ii) aggravated by his bilateral hearing loss.

NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation.

In formulating his or her opinions, the clinician should consider and address all competent medical and lay evidence of record, including, but not limited to:

(i)	The Veteran's service treatment records, including any and all audiological evaluations;

(ii)	The Veteran's post-service VA and private medical records; and

(iii)	The Veteran's competent lay statements regarding his first-hand in-service experience and the onset and continuity of his symptomatology.

If the clinician determines that it is less likely than not that the Veteran's bilateral hearing loss and/or tinnitus is/are due to and/or aggravated by his active duty service, ACDUTRA, and/or INACDUTRA, and/or that the Veteran's tinnitus is less likely than not caused and/or aggravated by his bilateral hearing loss, the clinician should discuss what other factor(s) caused the disorders. In other words, the clinician should determine the most likely etiology of the Veteran's bilateral hearing loss and tinnitus.

A complete rationale must be provided for all opinions and conclusions reached.

3. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran's chronic sinusitis. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided.

(a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's chronic sinusitis manifested during, or is the result of, his active duty service and/or ACDUTRA.

(b) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's chronic sinusitis was either (i) caused or (ii) aggravated by his service-connected disabilities.

NOTE: With respect to the question concerning aggravation, the clinician is advised that aggravation under 38 C.F.R. § 3.310(b) does not require "permanent worsening" of the nonservice-connected disability. If aggravation is found, the clinician should attempt to identify the baseline level of severity of disability prior to such aggravation.

In formulating his or her opinions, the clinician should consider and address the competent medical and lay evidence of record, including but not limited to:

(i)	The Veteran's service treatment records;

(ii)	The Veteran's post-service VA and private medical records; and

(iii)	The Veteran's competent lay statements regarding his first-hand in-service experiences and the onset and continuity of his symptomatology.

If the clinician determines that the Veteran's chronic sinusitis is less likely than not due to his active duty service and/or ACDUTRA, and/or is less likely than not caused and/or aggravated by his service-connected disabilities, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should determine the most likely etiology of the Veteran's chronic sinusitis.

A complete rationale must be provided for all opinions and conclusions reached.

4. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran's bilateral pes planus. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided.

The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's bilateral pes planus manifested during, or is the result of, his active duty service, ACDUTRA, and/or INACDUTRA.

In formulating his or her opinion, the clinician should consider and address all competent medical and lay evidence of record, including, but not limited to:

(i)	The Veteran's service treatment records;

(ii)	The Veteran's post-service VA and private medical records; and

(iii)	The Veteran's competent lay statements regarding his first-hand in-service experiences and the onset and continuity of his symptomatology.

If the clinician determines that the Veteran's bilateral pes planus is less likely than not due to his active duty service, ACDUTRA, and/or INACDUTRA, the clinician should discuss what other factor(s) caused the disorder. In other words, the clinician should determine the most likely etiology of the Veteran's bilateral pes planus.

A complete rationale must be provided for all opinions and conclusions reached.

5. Forward the claims file to an appropriate clinician to determine the nature and severity of the Veteran's service-connected splenectomy scar throughout the appellate period. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided.

Based on review of the claims file, the clinician should render an opinion addressing whether, at any point from April 29, 2014, to the present, the record reflects any change(s) in the severity of the Veteran's splenectomy scar and, if so, the approximate date(s) of any such change(s) and the extent of severity of the disability on each such date.

In formulating his or her opinion, the clinician should consider and address all competent medical and lay evidence of record, including the Veteran's VA and private medical records, the Veteran's previous VA examinations, and the Veteran's competent lay statements regarding the frequency, severity, and duration of his symptoms.

The clinician is also asked to explain and/or reconcile the conflicting findings of record as to the Veteran's scar measurements, approximate total area, and whether the scar had any underlying soft tissue damage.

6. After the foregoing is completed, the RO should readjudicate the issues of service connection for bilateral hearing loss, tinnitus, chronic sinusitis, and bilateral pes planus. The RO should also readjudicate the issue of entitlement to an initial compensable disability evaluation prior to January 14, 2020 and in excess of 10 percent thereafter for the Veteran's service-connected splenectomy scar. The RO should then also readjudicate the issues of entitlement to TDIU and to SMC including whether the RO's discontinuance of SMC was proper.

7. If any of the above-sought benefits are denied, the RO should issue a Supplemental Statement of the Case (SSOC) to the Veteran and his representative. An appropriate period of time should be allowed for response before returning the appeal to the Board. 

 

 

DELYVONNE M. WHITEHEAD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoffman

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.