APLASTIC ANEMIA

Summary

The veteran served from February 1969 to November 1970. The veteran's surviving spouse is the Appellant as the veteran passed away in February 2018. The appeal concerns the period from September 11, 2011, to January 22, 2017, for entitlement to a compensable disability rating for myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia. The Board reviewed the evidence of record at the time of the April 2020 statement of the case, as the veteran elected the Direct Review docket. The Board noted the veteran's attorney requested withdrawal but did not provide good cause, so the Board denied the withdrawal and maintained the attorney as representative. The Board found that the evidence did not demonstrate that the veteran's condition required continuous medication for control during the period under review, a requirement for a compensable rating under Diagnostic Code 7716. A September 2011 VA examination noted the disease was in remission and stable, with no indication of required continuous medication. A December 2019 VA opinion also stated continuous medication was not required. The Board concluded that the evidence persuasively weighs against a compensable disability rating for this period. Service connection for myelofibrosis was previously granted, with a 100 percent rating restored from May 2009 to September 2011, and a 100 percent rating granted effective January 23, 2017. The appeal specifically addressed the period between these dates.

Rationale

Evidence did not show continuous medication required for control; VA examiner noted condition was in remission and stable; December 2019 VA opinion stated continuous medication not required

Full Decision Text

Citation Nr: A22012021
Decision Date: 06/27/22	Archive Date: 06/27/22

DOCKET NO. 200627-95346
DATE: June 27, 2022

ORDER

Entitlement to a compensable disability rating for myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia, from September 11, 2011, to January 22, 2017, is denied. 

FINDING OF FACT

From September 11, 2011, to January 22, 2017, the medical evidence does not demonstrate that the Veteran's myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia required continuous medication for control.

CONCLUSION OF LAW

From September 11, 2011, to January 22, 2017, the criteria for a compensable disability rating for myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia are not met.  38 U.S.C. § 1155; 38 C.F.R. § 4.117 Diagnostic Code 7716 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1969 to November 1970.  The Veteran died in February 2018.  His surviving spouse has been substituted as the Appellant for purposes of processing the appeal to completion under the provisions of 38 U.S.C. § 5121A. 

A rating decision was issued under the legacy system in September 2011 and the Veteran submitted a timely notice of disagreement.  In April 2020, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC).  The Veteran opted the claim(s) into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a June 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the April 2020 SOC.  Therefore, the April 2020 SOC is the decision on appeal. In the June 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 SOC.  38 C.F.R. § 20.301.

In a May 2021 statement, the Appellant's attorney indicated that he no longer wishes to represent the Appellant in this appeal. Pertinent regulation states that after an appeal to the Board of Veterans' Appeals has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other individual representative; failure of the Appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Such motions must be in writing and must include the name of the Veteran, the name of the claimant or Appellant if other than the Veteran (e.g., a Veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and the reason why withdrawal should be permitted, and a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the Appellant, setting forth the address to which the copy was mailed. 38 C.F.R. § 20.608 (b)(2). Here, the attorney's request for withdrawal was submitted after the appeal was filed to the Board and he did not provide good cause reasons for the withdrawal. The attorney was notified in a May 2022 letter from the Board that he must submit a motion to the Board showing good cause for the withdrawal and the file was placed into abeyance for 30 days to provide the opportunity to submit this information. Neither the attorney nor the Appellant responded to the May 2022 letter, and, to date, the attorney has not provided good cause reasons for the withdrawal. Therefore, the Board denies the requested withdrawal and finds that the Appellant's attorney remains the representative for purposes of this decision.

Entitlement to a compensable rating for myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia, from September 11, 2011, to January 
 the Board that he must submit a motion to the Board showing good cause for the withdrawal and the file was placed into abeyance for 30 days to provide the opportunity to submit this information. Neither the attorney nor the Appellant responded to the May 2022 letter, and, to date, the attorney has not provided good cause reasons for the withdrawal. Therefore, the Board denies the requested withdrawal and finds that the Appellant's attorney remains the representative for purposes of this decision.

Entitlement to a compensable rating for myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia, from September 11, 2011, to January 22, 2017.

Service connection for myelofibrosis was granted in a September 2011 rating decision, at which time a 100 percent rating was assigned, effective December 29, 2008, and a 0 percent evaluation was assigned from May 1, 2009. In a November 2011 notice of disagreement, the Veteran's attorney expressed disagreement with the September 2011 rating decision. 

In June 2019, the Board granted restoration of the 100 percent rating from May 2009 until the date of his examination, September 11, 2011. The Board also directed a statement of the case to be issued regarding the issue of entitlement to a compensable rating for myelofibrosis, from September 11, 2011. In December 2019, the RO implemented the Board's decision and restored the 100 percent rating from May 2009 to September 2011. Subsequently, in an April 2020 rating decision, the Veteran's disability rating was increased to 100 percent, effective January 23, 2017, and special monthly compensation was also granted. The RO then issued a statement of the case in April 2020, from which the current appeal stems. The Board has characterized the appeal accordingly, to consist of the period of time from September 11, 2011, to January 22, 2017.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21. 

Where there is a question as to which of two disability ratings shall be applied, the higher rating 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.  It is the defined and consistently applied policy of VA 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. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017).  Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  38 C.F.R. § 4.14 (2017).  It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20. 

Evidence to be considered in the appeal of an initial assignment of a disability rating is not
eban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20. 

Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999).  In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 

From September 11, 2011, to January 22, 2017, the Veteran's myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia was rated under 38 C.F.R. § 4.117, Diagnostic Codes 7799-7716 (aplastic anemia).  Aplastic anemia requiring continuous medication for control is rated 10 percent disabling.  Aplastic anemia requiring transfusion of platelets or red cells at least once per year, but less than once every three months, or infections recurring at least once per year, but less than once every three months, is rated 30 percent disabling.  Aplastic anemia requiring transfusion of platelets or red cells at least once every three months; or infections recurring at least once every three months is rated 60 percent disabling.  Aplastic anemia requiring bone marrow transplant; requiring transfusion of platelets or red cells at least once every six weeks; or infections recurring at least once every six weeks is rated 100 percent disabling.  38 C.F.R. § 4.117, Diagnostic Code 7716 (2017). 

A Note to Diagnostic Code 7716 provides that the 100 percent rating for bone marrow transplant shall be assigned as of the date of hospital admission and shall continue with a mandatory VA examination six months following hospital discharge. The Note states that any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e) of this chapter, but as explained above, the notice provisions of 38 C.F.R. § 3.105 (e) are not triggered where there is no discontinuance or reduction of compensation currently being made. 

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.  38 C.F.R. § 4.31 (2017). 

The VA provided the Veteran with an examination for myelofibrosis in September 2011 and that examiner noted the disease was in remission and there were no current treatments for this condition.  Indeed, the examiner noted that the Veteran's condition was stable.  The examiner noted that the Veteran was taking medication noted as acyclovir, which was an antiviral due to recent history of herpes zoster, or shingles, that left him with postherpetic neuropathy.  However, the examiner did not indicate that continuous medication was required for control as the disease was in remission. 

In a VA opinion, dated December 2019, a VA examiner opined that the date of diagnosis of the Veteran's myelodysplastic syndrome was in 2017 and that the Veteran had anemia and thrombocytopenia secondary to the myelodysplastic syndrome, with date of diagnosis in 2017.  The examiner noted that continuous medication was not required for control. 

Based on the evidence discussed above, the Board finds that a compensable disability rating is not warranted for the Veteran's myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia under Diagnostic Code 7716, from September 11, 2011, to January 22, 2017.  In this regard
 of diagnosis of the Veteran's myelodysplastic syndrome was in 2017 and that the Veteran had anemia and thrombocytopenia secondary to the myelodysplastic syndrome, with date of diagnosis in 2017.  The examiner noted that continuous medication was not required for control. 

Based on the evidence discussed above, the Board finds that a compensable disability rating is not warranted for the Veteran's myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia under Diagnostic Code 7716, from September 11, 2011, to January 22, 2017.  In this regard, the evidence did not show that the Veteran's disability required continuous medication for control, which is required for a higher 10 percent disability rating under Diagnostic Code 7716. The December 2019 VA examiner specifically noted that continuous medication was not required for control of his disability, including anemia or thrombocytopenia. 

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The Board further notes that no other Diagnostic Code dated during the pendency of the appeal would avail the Veteran of a higher disability rating.  Accordingly, the Board finds that the evidence persuasively weighs against a compensable disability rating from September 11, 2011, to January 22, 2017, for the Veteran's myelofibrosis, status post stem cell transplant, with aplastic anemia and myelodysplastic syndrome with thrombocytopenia is not warranted.

 

 

L. ANDERSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nadia Kamal, 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.