Citation Nr: A23006288 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 221129-298844 DATE: March 30, 2023 ORDER Entitlement to separate ratings for residuals of glioblastoma multiforme (hereafter brain tumor) is denied. REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is remanded. FINDING OF FACT The Veteran received surgical and chemotherapeutic treatment within two years of the date of her death on June 3, 2010; thus, the Veteran was assigned the maximum rating authorized under Diagnostic Code 8002 and entitlement to any separate ratings for residuals of a brain tumor are not warranted. CONCLUSION OF LAW The criteria for a rating in excess of 100 percent or separate ratings for a brain tumor and residuals are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.124a, Diagnostic Code 8002. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from September 1973 to September 1978, May 1999 to July 1999, and April 2002 to September 2002. The appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2022 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his November 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant selected the Evidence Submission option; therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his attorney with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303. Increased Rating - Residuals of Brain Tumor The appellant and his attorney contend the Veteran was entitled to separate ratings for her brain tumor residuals. See November 2022 NOD. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The AOJ assigned the Veteran's brain tumor a 100 percent rating throughout the period in question under Diagnostic Code 8002. Under Diagnostic Code 8002, a malignant growth of the brain is rated at 100 percent for two years following cessation of surgical, chemotherapeutic, or other treatment modality. At that point, if the residuals have stabilized, the rating will be made on neurological residuals according to symptomatology, but with a minimum rating of 30 percent. 38 C.F.R. § 4.124a. In the current case, the Veteran was assigned a 100 percent rating from June 23, 2009, the date VA received the Veteran's claim of entitlement to service connection for brain cancer, to June 3, 2010, the date of the Veteran's death. A review of the record illustrates that a May 2009 private treatment record reflects that the Veteran was to begin an additional treatment with Avastin or a chemotherapeutic agent. The treatment record indicates that an MRI reflected progressive disease in the vicinity of the tumor resection cavity in the left-sided posterior temporal lobe. Further, the Veteran had a left-sided posterior temporal craniotomy on June 24, 2008 for her brain tumor. Thus, as the competent and credible evidence of record reflects that the Veteran had chemotherapeutic and surgical treatment within two years of her death on June 3, 2010, the AOJ correctly assigned the 100 percent rating for the Veteran's brain tumor under Diagnostic Code 8002. The maximum schedular rating under these circumstances is 100 percent since the 100 percent rating remains in effect for two years following the cessation of treatment. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a. As two years had not passed from the cessation of such treatment at the time of the Veteran's death, the malignant brain tumor could not be evaluated based on residuals, including as separate to the 100 percent rating. The Board acknowledges that the Board is remanding the appellant's claim of entitlement to SMC for development of private treatment records. The private treatment records are not pertinent to the appellant's claim for separate ratings for residuals of the Veteran's brain tumor because the currently assigned 100 percent rating is the maximum rating under the Rating Schedule for the Veteran's brain tumor since the Veteran had chemotherapeutic and surgical treatment within two years of her death, as noted above. Therefore, as there is no legal basis upon which to award a higher schedular rating or separate schedular ratings for any residuals of the Veteran's brain tumor since the Veteran was in receipt of the maximum rating under the Rating Schedule, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Entitlement to SMC based on the need for aid and attendance or housebound status is remanded. At an April 2013 Board hearing, the appellant stated that treatment providers, "put [the Veteran] on a chemo drug that restricts new blood vessels from being formed. And it seemed to work all the way up to the beginning of 2010." A review of the claims file illustrates that the most recent private medical record in the file is dated September 28, 2009. A review of the record illustrates that VA has not tried to obtain any private treatment records for the period beginning in September 2009 and up until the Veteran's death on June 3, 2010. As the appellant's April 2013 Board hearing testimony was in the record prior to the March 2022 rating decision, it is a pre-decisional duty to assist error that the AOJ did not make a reasonable effort to obtain records of private treatment, as was indicated in the April 2013 Board hearing. Therefore, a remand is required to allow VA to obtain authorization and request any outstanding private treatment records. The matter is REMANDED for the following action: Request the appellant to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA for any private treatment provider for treatment related to the Veteran's brain tumor from September 29, 2009 to the Veteran's death on June 3, 2010. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the appellant of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.