Citation Nr: 22010556 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 16-32 099 DATE: February 23, 2022 ORDER An initial compensable rating for residuals of non-Hodgkin's lymphoma (NHL) is denied. Service connection for a bilateral shoulder disability, including as due to NHL is denied. FINDINGS OF FACT 1. The Veteran's NHL has been in remission since before he was service connected for the disability. 2. The evidence persuasively weighs against finding that the Veteran has a bilateral shoulder disability as a result of service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for NHL are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.117, Diagnostic Code (DC) 7715. 2. The criteria for service connection for a bilateral shoulder disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to June 1969, to include service in the Republic of Vietnam. He is the recipient of the Bronze Star and the Combat Infantryman Badge. In July 2019, the Veteran testified before the undersigned Veterans' Law Judge. A copy of the transcript is associated with the record. After the hearing, in July 2021, the Board remanded the hearing for further development. Of note, the Veteran has already been separately service-connected and rated for a host of disabilities that are residuals of NHL. The Veteran has not appealed the ratings for those separately evaluated disabilities and a statement of the case has not been issued for those disabilities. If the Veteran seeks higher ratings for those disabilities, a separate appeal will need to be filed. Increased Rating An initial rating is one assigned at the time service connection is granted. When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic codes are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. NHL NHL is rated under 38 C.F.R. § 4.117, DC 7715, which provides only a 100 precent disability rating "[w]hen there is active disease, during treatment phase, or with indolent and non-contiguous phase of low grade [Non-Hodgkins lymphoma]." Otherwise, a noncompensable rating is assigned. 38 C.F.R. § 4.31 ("In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met."). The Note to DC 7715 provides, A 100 percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Two years after discontinuance of such 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. If there has been no recurrence, rate on residuals under the appropriate diagnostic code(s). Neither DC 7715, VA regulations, nor relevant statutes define what constitutes "active disease," "treatment phase," or "indolent and non-contiguous phase of low grade non-Hodgkins lymphoma." Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 80506 (Fed. Cir. 2010). Upon review, the Board finds that a compensable rating is not warranted for NHL at any time during the relevant appeal period because the evidence consistently demonstrates that the Veteran had not had active disease or been in a treatment phase during the processing of the appeal. Neither the Veteran nor his representative have argued otherwise. The Board has also considered whether the Veteran has any residuals of NHL which would warrant separate ratings. [The Veteran is not entitled to separate ratings for any of the alleged residuals that are not already separately rated.] The record reflects that the Veteran has complained of having weakness, fatigue, sleep problems, poor memory, lightheadedness, dizziness, poor balance, syncope, foot pain, swelling of the big toes, and a hiatal hernia. Upon review, the Board finds that the Veteran is not entitled to separate ratings for any of the alleged residuals that are not already separately rated. Throughout the record, the Veteran consistently denied weakness. In every instance where the Veteran had his lower extremities examined no edema was noticed. In June 2019, the Veteran denied dizziness, shortness of breath and chest pain. In November 2019, he denied dizziness, loss of balance, and heartburn, but admitted to rare occurrences of joint pain. The location of the joint pain was not mentioned, nor does the record indicate that the Veteran stated he had any edema. In November 2020, once again, the Veteran denied chest pain, weakness, heartburn, or joint pain. Similarly, in December 2020, he denied dizziness, chest pain, and shortness of breath. In January 2021, the Veteran complained of fatigue, shortness of breath, and chest pressure. He did not mention any other the other residuals before the Board. In October 2021 at a VA examination, the Veteran did not report experiencing any residuals and the examiner stated the Veteran did not have any residuals. In total, the Veteran had three complaints of residuals that are before the Board at a February 2015 VA examination, during his July 2019 hearing, and at the January 2021 VA examination. These three sparse complaints do not constitute a disability. The Board notes that neither the Veteran nor his representative have introduced or identified any evidence which indicated that these conditions were diagnosed since the Veteran was service connected for lymphoma. In addition to the reasons already mentioned, the Board denies a separate rating for the Veteran's foot pain, for the following specific reasons. The Veteran was diagnosed with bunions and with flat feet. The record lacks any evidence that the bunions and or flat feet are related to NHL and therefore are not rated as residuals of NHL. In December 2015, the Veteran stated that he had always been flat footed. In January 2016, he complained of flat fleet, stating that he did not remember going into service with flat feet. In January 2016, the Veteran's flat foot was diagnosed as congenital pes planus. The Veteran's December 2015 statement and the diagnosis of congenital flat foot is supported by service treatment records. While the Veteran is competent to make diagnosis based on his medical expertise, there must be evidence to support his contention that a disability is a residual of NHL. The evidence does not support this assertion. Based on the above discussion, the Board concludes that neither a compensable rating for NHL nor a separate rating for any residual disability is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi,381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In order to establish service connection on a secondary basis, there must be (1) a current non-service-connected disability, (2) a service-connected disability, and (3) evidence showing that the current non-service-connected disability is either proximately due to or the result of, or aggravated (increased in severity) beyond its natural progress by the service-connected disability. 38 C.F.R. § 3.310. Bilateral shoulder disability The Veteran contends that his bilateral shoulder disability was caused by his military service and/or his service-connected NHL. During the July 2019 hearing, the Veteran stated that his shoulder pain began after placement of his chemotherapy port for treatment of his service-connected NHL. The Board finds that the first two elements under both theories of entitlement are met. However, the Veteran's claim for service connection for bilateral shoulder disability is denied because the third element to be service connected under both a direct and secondary basis is not met. The Veteran afforded VA examinations in December 2020 and October 2021. The December 2020 VA examiner opined that the Veteran's bilateral shoulder disability, diagnosed as shoulder impingement syndrome, was less likely than not proximately due to or the result of his service-connected condition. The examiner noted that the two conditions are not medically related and that "[t]he claimed disorder is a separate entity entirely from the service connected condition and unrelated to it. The medical literature does not support a medical relationship." The examiner stated that there is no evidence in the file of a diagnosis or treatment for bilateral shoulder impingement since treatment for lymphoma in 2012. The October 2021 VA examiner failed to identify any current shoulder pathology but agreed that the claimed condition was less likely than not related to service or a service-connected disability. It is notable that neither the Veteran nor his representative has provided any medical evidence to contradict the conclusions of the VA examiners. The Board has also considered statements from the Veteran concerning the causation of his bilateral shoulder disability. The Veteran is competent to report his symptoms associated with his claimed disability, as such symptoms are readily apparent to a lay person. However, the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to provide a competent opinion as to medical causation. The question of causation involves a complex medical question, and they do not have the medical expertise to provide such an opinion. Therefore, he is not competent to provide opinions as to the etiology of his bilateral shoulder disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Considering the pertinent evidence in light of the governing legal authority, the Board finds that the evidence persuasively weighs against the claim. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and the claim must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.