Citation Nr: A24040586 Decision Date: 07/24/24 Archive Date: 07/24/24 DOCKET NO. 240508-437447 DATE: July 24, 2024 ORDER Entitlement to an initial disability rating of 100 percent for chronic lymphocytic leukemia and monoclonal B-cell lymphocytosis is granted. FINDING OF FACT The appellant's chronic lymphocytic leukemia has been an active disease during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 100 percent for chronic lymphocytic leukemia and associated monoclonal B-cell lymphocytosis is met. 38 U.S.C. §§ 1101, 1110, 1113; 38 C.F.R. §§ 4.3, 4.7, 4.117 Diagnostic Code (DC), 7703. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served honorably in the United States Marine Corps on active duty from July 1963 to July 1967. The appellant received the Armed Forces Expeditionary Medal, the Good Conduct Medal, the Navy Unit Commendation, the Vietnam Campaign Medal with Device, and the National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2023 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration (the agency of original jurisdiction (AOJ)) in the modernized review system. See 38 C.F.R. § 3.2400. The appellant submitted a notice of disagreement (NOD) with the rating decision in May 2024 requesting an appeal to the Board on the Direct Review Docket. Applicable Evidentiary Windows As the appellant has selected the Direct Review Docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issues on appeal. See 38 C.F.R. §§ 20.300(a), 20.301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD (VA Form 10182). 38 C.F.R. § 20.301. The appellant has not filed such a request. If additional evidence was submitted after the AOJ decision, the Board will not consider it. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023). Appellant's Contentions The appellant and his representative assert that the appellant's leukemia is an active disease and that the appellant is entitled to a disability rating of 100 percent. See, e.g., Appellate Brief, June 3, 2024. Applicable Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the adjudicator assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The appellant's leukemia is rated under 38 C.F.R. § 4.117, DC 7703. A 100 percent disability rating under DC 7703 contemplates leukemia (except for chronic myelogenous leukemia) when there is an active disease or during a treatment phase. Otherwise, residuals are rated under appropriate DCs. A noncompensable rating contemplates chronic lymphocytic leukemia or monoclonal B-cell lymphocytosis (MBL), asymptomatic, Rai Stage 0. Analysis Multiple opinions from VA clinicians support the contentions of the appellant and his representative that the appellant's leukemia is an active disease. See Hematologic and Lymphatic Conditions Including Leukemia Disability Benefits Questionnaire, May 2, 2023; Hematologic and Lymphatic Conditions Including Leukemia Disability Benefits Questionnaire, December 14, 2022. The appellant also submitted an opinion from his VA treatment provider further confirming these findings. See Correspondence from D.T., March 13, 2023. Specifically, the opinion confirms that the appellant was diagnosed with a CD5 positive mature B-cell neoplasm most consistent with early chronic lymphocytic leukemia. It clarifies that this is an incurable cancer and requires frequent monitoring to determine the rate of disease progression, to include regular office visits, lab tests, and possibly computed tomography (CT) scans. It notes that treatment usually includes chemotherapy. There is no compelling evidence to the contrary in the record on appeal. Accordingly, entitlement to an initial disability rating of 100 percent for chronic lymphocytic leukemia and associated monoclonal B-cell lymphocytosis is granted. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy, Counsel The 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.