Citation Nr: 22018131 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 13-09 661A DATE: March 28, 2022 ORDER Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy, a residual of service-connected non-Hodgkin's lymphoma, is dismissed as moot. Entitlement to a rating in excess of 10 percent for right lower extremity neuropathy, a residual of service-connected non-Hodgkin's lymphoma, is dismissed as moot. FINDINGS OF FACT 1. The Veteran's service-connected non-Hodgkin's lymphoma, including the residual of left lower extremity neuropathy, is rated 100 percent disabling effective May 14, 2010. 2. The Veteran's service-connected non-Hodgkin's lymphoma, including the residual of right lower extremity neuropathy, is rated 100 percent disabling effective May 14, 2010. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy, a residual of service-connected non-Hodgkin's lymphoma is dismissed as moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.117, Diagnostic Code (DC) 7715. 2. Entitlement to a rating in excess of 10 percent for right lower extremity neuropathy, a residual of service-connected non-Hodgkin's lymphoma is dismissed as moot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.117, DC 7715. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1969 to July 1971. These matters come before the Board of Veterans' Appeals (Board) from a November 2017 rating decision. In an August 2019 decision, the Board denied the issues of entitlement to a compensable rating for non-Hodgkin's lymphoma from May 14, 2010 to April 2, 2013 and from February 1, 2014 to December 27, 2016, and entitlement to a rating in excess of 10 percent for anemia and fatigue residuals of non-Hodgkin's lymphoma from May 14, 2010 to April 2, 2013, and from February 1, 2014 to December 27, 2016. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Unfortunately, the Veteran died in ¬¬¬¬¬¬January 2020, during the pendency of the appeal before the Court. The Appellant is the Veteran's surviving spouse, who has successfully substituted as Appellant. In January 2021, the Court granted a Joint Motion for Partial Remand (JMPR), vacated the Board's decision with respect to the issues of entitlement to a compensable rating for non-Hodgkin's lymphoma from May 14, 2010 to April 2, 2013, and from February 1, 2014 to December 27, 2016, and entitlement to a rating in excess of 10 percent for anemia and fatigue residuals of non-Hodgkin's lymphoma from May 14, 2010 to April 2, 2013, and from February 1, 2014 to December 27, 2016, and returned the Appellant's claims to the Board. Additionally, in the January 2021 JMPR, the parties agreed that although the Board noted the Veteran's residuals of non-Hodgkin's lymphoma in the August 2019 decision, including anemia and neuropathy, the Board did not properly address the issues of increased ratings for the neuropathy of the bilateral lower extremities. In a May 2021 decision, the Board remanded the issues of entitlement to a compensable rating for non-Hodgkin's lymphoma from May 14, 2010 to April 2, 2013 and from February 1, 2014 to December 27, 2016; entitlement to a rating in excess of 10 percent for anemia and fatigue residuals of non-Hodgkin's lymphoma from May 14, 2010 to April 2, 2013, and from February 1, 2014 to December 27, 2016; entitlement to a rating in excess of 20 percent for left lower extremity neuropathy, a residual of non-Hodgkin's lymphoma; and entitlement to a rating in excess of 10 percent for right lower extremity neuropathy, a residual of non-Hodgkin's lymphoma, to obtain VA examinations. The Board noted that under applicable rating criteria for non-Hodgkin's lymphoma, DC 7715, a 100 percent disability rating is warranted "when there is active disease, during a treatment phase, or with indolent and non-contiguous phase of low grade NHL." 38 C.F.R. § 4.117, DC 7715. Further, the Board noted that DC 7715 provides for a 100 percent disability rating for active disease as well as during a treatment phase. See Huerta v. McDonough, U.S. Court of Appeals for Vet. Claims No. 19-2805, (decided April27, 2021). Therefore, the Board directed that the addendum VA examination opinion obtained upon remand would be required to clarify the Veteran's periods of active non-Hodgkin's lymphoma and treatment phases throughout the period on appeal. Additionally, the Board noted that under DC 7715, the residuals of non-Hodgkin's lymphoma are only rated under the appropriate DCs when a 100 percent disability rating for non-Hodgkin's lymphoma is not assigned, and that the additional development directed upon remand may preclude separate ratings for residuals if a 100 percent rating for non-Hodgkin's lymphoma is awarded. 38 C.F.R. § 4.117, DC 7715. In a January 2022 rating decision, Regional Office (RO) determined that the Veteran's period of active disease and treatment phases warranted a 100 percent rating for service-connected non-Hodgkin's lymphoma throughout the entire period on appeal. Additionally, the RO noted that any residuals of the Veteran's non-Hodgkin's lymphoma would fall within the umbrella of the assigned 100 percent disability rating. 38 C.F.R. § 4.117, DC 7715. Presently, the Board observes that the Note to DC 7715 provides that only when there has been no recurrence are the residuals of non-Hodgkin's lymphoma to be rated under the separate DCs. Id. As the RO determined in the January 2022 rating decision that the Veteran was in an active disease or treatment phase of non-Hodgkin's lymphoma throughout the entire period on appeal and awarded a 100 percent rating, the Board finds that this rating includes the residuals of neuropathy of the bilateral lower extremities pursuant to the Note to DC 7715. Therefore, ratings under separate DCs are precluded and the January 2022 rating decision constitutes a full grant of the benefits sought. Accordingly, the issues entitlement to a rating in excess of 20 percent for left lower extremity neuropathy, a residual of non-Hodgkin's lymphoma, and entitlement to a rating in excess of 10 percent for right lower extremity neuropathy, a residual of non-Hodgkin's lymphoma, are therefore rendered moot by the January 2022 rating decision granting a 100 percent rating for service-connected non-Hodgkin's lymphoma from May 14, 2010. The appeal is dismissed. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.