Willis E. Breland v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-5980
WILLIS E. BRELAND, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued April 28, 2020 Decided May 29, 2020)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Alex L. Kutrolli and Shannon E. Leahy, with whom James M. Byrne, General Counsel;
Mary Ann Flynn, Chief Counsel; James B. Cowden, Deputy Chief Counsel; and Mark J.
Villapando, were on the brief, all of Washington, D.C., for the appellee.
Before GREENBERG, TOTH, and FALVEY, Judges.
FALVEY, Judge, filed the opinion of the Court. GREENBERG, Judge, filed an opinion
concurring in part and dissenting in part.
FALVEY, Judge: Army veteran Willis E. Breland appeals through counsel a June 27, 2018,
Board of Veterans' Appeals decision denying a compensable initial rating for service-connected
squamous cell carcinoma of the tongue (tongue cancer) from August 1, 2007, to January 16, 2008,
and from September 1, 2008, to present. Record (R.) at 4-14 (the veteran had 100% ratings for
tongue cancer from December 26, 2006, to August 1, 2007, and from January 16, 2008, to
September 1, 2008).1
This appeal, over which the Court has jurisdiction under 38 U.S.C. §§ 7252(a) and 7266(a),
was referred to a panel of the Court to address whether the note to 38 C.F.R. § 4.114, Diagnostic
1
The Board granted an August 1, 2007, effective date for diffuse interstitial fibrosis, cervical strain,
dysphagia, and hypothyroidism. These are favorable findings that the Court may not disturb. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007). Moreover, the veteran raises no argument as to these matters, so any appeal
as to them is dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc). The Board also remanded
a claim for an initial rating in excess of 30% for post-traumatic stress disorder. Because a remand is not a final decision
of the Board subject to judicial review, the Court lacks jurisdiction to consider this matter. See Howard v. Gober, 220
F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. §
20.1100(b) (2019).
Code (DC) 7343, which mandates a VA medical examination 6 months after cancer therapy ceases,
requires VA to continue a 100% rating until such time as it gets a medical examination, even when
awarding service connection retroactively, long after the 6-month period has passed. We hold that
it does not.
Instead, we hold that the procedures in the note to DC 7343—i.e., an examination 6 months
after cessation of treatment and contemporaneous notice of any reduction—are prospective. Thus,
when VA retroactively awards service connection and disability ratings for malignant neoplasms
of the digestive system, these procedures are not strictly applicable and VA's inability to apply
them does not require the indefinite continuation of a 100% rating. Therefore, the Board did not
misapply the note to DC 7343 and did not err in denying a 100% tongue cancer rating for the listed
periods. What's more, because the record contained sufficient evidence for VA to determine a clear
picture of Mr. Breland's health and assign proper ratings and effective dates, we will affirm the
portion of the June 2018 Board decision denying a compensable tongue cancer rating from August
1, 2007, to January 16, 2008, and from September 1, 2008, to present.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Breland served on active duty from November 1965 to November 1968, with service
in Vietnam. R. at 2120. In December 2006, he filed a claim for service connection for tongue
cancer. R. at 2019. He completed chemotherapy and radiation therapy in 2007. See R. at 1280.
Then in December 2007, the regional office (RO) denied his claim because tongue cancer was not
one of the recognized disabilities resulting from herbicide exposure in Vietnam. R. at 1764-65.
Soon, however, Mr. Breland's tongue cancer returned, as a January 2008 private medical
record again noted a diagnosis of tongue cancer. R. at 1284. He had surgery for this bout of cancer
in February 2008, R. at 1280, and a July 2008 private medical record revealed no evidence of
malignancy, R. at 1209. Mr. Breland then continued with his VA claim.
In December 2008, he filed his Notice of Disagreement (NOD) with the RO decision. R.
at 1784. In May 2010, a VA examiner noted no recurrence of the veteran's tongue cancer and
concluded that that condition was less likely related to herbicide exposure. R. at 1698. In August
2010, the RO continued to deny service connection for tongue cancer. R. at 1666. Soon after, Mr.
Breland perfected his appeal. R. at 1608.
2
This is where things get murky. Neither party laid out the facts for us in their briefs and the
record does not contain documents covering this period. However, we know that, in September
2015, the RO granted service connection for tongue cancer after Mr. Breland submitted a medical
opinion tying his cancer to herbicide exposure. R. at 1431. The RO also noted that a January 17,
2007, medical record reflected that the veteran was "about 10 days out from radiation therapy." Id.The RO assigned a 100% tongue cancer rating from December 26, 2006, to August 1, 2007 (active
malignancy and treatment period) and a noncompensable rating from August 1, 2007 (inactive
disease), stating that higher ratings might be warranted based on residuals. Id.In August 2016, Mr. Breland filed an NOD as to the noncompensable rating from August
1, 2007, asserting that, because of his tongue cancer treatment, he experienced several residuals.
R. at 1325-36. In September 2017, the veteran underwent a VA examination regarding the
residuals. R. at 609-26. In November 2017, the RO granted service connection for these residuals,
assigning a 60% interstitial fibrosis rating, a 10% cervical strain rating, and noncompensable
dysphagia and hyperthyroidism ratings, all effective May 15, 2017 (the date of receipt of the
veteran's supplemental claim for compensation). R. at 371-72.
In February 2018, the RO determined that the proper effective date for cervical strain,
dysphagia, and hyperthyroidism was August 5, 2016 (the date of the veteran's NOD, in which he
reasonably raised those disabilities). R. at 202-06 (the decision did not address fibrosis). The RO
also determined that a 100% tongue cancer rating was warranted from January 16, 2008, the date
of the second active cancer diagnosis, to September 1, 2008, 6 months after treatment for that bout
of cancer was completed. Id.In March 2018, Mr. Breland appealed that decision, arguing that VA failed to correctly
apply 38 C.F.R. § 4.114, DC 7343, the regulation under which his tongue cancer was rated. R. at
111-14. A portion of that regulation's note provides that "[s]ix months after discontinuance of such
[cancer] treatment, the appropriate disability rating shall be determined by mandatory VA
examination." § 4.114, DC 7343 (2019). Mr. Breland focused his argument on this portion of the
note. He asserted that VA assigned the wrong rating because the rating was not supported by such
a mandatory VA examination. R. at 114.
In the decision on appeal, the Board rejected Mr. Breland's argument. It recognized that
DC 7343 mandates a VA examination to determine the extent and severity of cancer residuals after
treatment. R. at 8. But, the Board determined that VA examinations could not have been conducted
3
at the end of the 6-month periods following the cessation of Mr. Breland's treatment because the
100% tongue cancer ratings were assigned retroactively. R. at 8-9. The Board also explained that,
as much as the veteran felt that he was entitled to a 100% rating from the date of service connection
to present, this was not the intent of the regulation. R. at 9. Instead, the regulation instructed that,
if there was no recurrence, the condition is to be rated on its residuals. Id. The Board thus denied
an initial compensable rating for tongue cancer from August 1, 2007, to January 16, 2008, and
from September 1, 2008, to present. Id.
Even so, the Board did award earlier effective dates for diffuse interstitial fibrosis, cervical
strain, dysphagia, and hypothyroidism. Rather than the August 5, 2016, date assigned by the RO,2
the Board concluded that an August 1, 2007, effective date was appropriate because medical
evidence established that Mr. Breland suffered from these residual conditions from August 1, 2007
(the date of cessation of the first 100% tongue cancer rating). R. at 10.3
II. PARTIES' ARGUMENTS
Under § 4.114, DC 7343, a 100% rating is warranted for "[m]alignant neoplasms of the
digestive system, exclusive of skin growths." The note to this regulation tells us that:
A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray,
antineoplastic chemotherapy or other therapeutic procedure. Six months after
discontinuance of such treatment, the appropriate disability rating shall be
determined by mandatory VA examination. Any change 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 local recurrence or metastasis, rate on residuals.
Mr. Breland argues that, based on the plain meaning of the note to DC 7343, he has a right
to retain the 100% tongue cancer rating from the date of his claim until VA gave him the noted
2
The Court notes that VA does not appear to have assigned an August 5, 2016, effective date for fibrosis.
Instead, the May 15, 2017, effective date seems to have remained for that condition following the November 2017
and February 2018 RO decisions.
3
On April 28, 2020, Mr. Breland filed a Solze v. Shinseki, 26 Vet.App. 299, 301 (2013), notice. He attached
a March 2020 RO decision, which implemented the portion of the June 2018 Board decision granting an August 1,
2007, effective date for diffuse interstitial fibrosis and assigned a 60% rating from that date. The accompanying code
sheet reflected that Mr. Breland's combined disability ratings (for the noncompensable tongue cancer periods) were
thus as follows: 80% from August 2007 to January 2008; 80% from September 2008 to September 2017; and 100%
from September 2017. Still, the March 2020 RO decision noted an August 5, 2016, effective date for the 10% cervical
spine, noncompensable dysphagia, and noncompensable hyperthyroidism ratings, although the June 2018 Board
decision also granted an August 1, 2007, effective date for these conditions. In his April 30, 2020, response to the
Solze notice, the Secretary averred that, on that same date, he contacted two ROs to inform them of this.
4
mandatory VA examination. Appellant's Brief (Br.) at 4-7; Appellant's Reply Br. at 2-5. Here, this
would mean a 100% rating for roughly a decade. Mr. Breland readily acknowledges the Board's
finding that, because the 100% tongue cancer ratings were assigned retroactively, administration
of a VA examination at the end of the 6-month periods following cessation of treatment was
impossible. But he argues that the Board's reasoning is at odds with the note's clear instructions.
He therefore asks the Court to reverse the denial of a 100% rating from August 1, 2007, to January
16, 2008, and from September 1, 2008, to October 1, 2017. Appellant's Br. at 8; Appellant's Reply
Br. at 11.
On the other hand, the Secretary urges the Court to affirm the Board decision. He cites
Tatum v. Shinseki, 24 Vet.App. 139 (2010), and Reizenstein v. Peake, 22 Vet.App. 202 (2008),
aff'd sub nom. Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009), as analogous to the issue
here. In Tatum, the Court reviewed 38 C.F.R. § 4.115b, DC 7528 (malignant neoplasms of the
genitourinary system), and found that the notice requirement referenced in it was inapplicable to
the assignment of staged ratings. 24 Vet. App. at 142-144. And in Reizenstein, the Court
determined that 38 C.F.R. § 3.343(a), which requires that VA conduct an examination before
reducing a total disability rating, contemplates prospective action and was thus not applicable to
staged ratings, which are retrospective. 22 Vet.App. at 209. The Court stated that such an
application "would be imposing unnecessary procedure in a situation where such procedure is
unwarranted." Id.
Mr. Breland counters that DC 7343 only has a 100% rating, and so it is impossible for the
Board to assign a staged rating. Appellant's Reply Br. at 7-8 (asserting that his "appeal concerns
the assignment of a noncompensable rating when the only rating available for his service
connected disability. . . under [] DC 7343 is a 100% rating. There is no noncompensable rating
available for assignment by VA."). He also contends that any rating for a residual condition is
separate from the tongue cancer rating and therefore does not constitute a staged rating. Id. He thus
argues that, under the correct interpretation of DC 7343, he had a right to retain the 100% rating
until VA obtained the mandated examination and determined the separate disability ratings for any
residuals. Id. at 8. Finally, Mr. Breland asserts that the Secretary's discussion of a rating reduction
is wrong because the note "says nothing whatsoever about 'reduction'" and instead instructs that a
100% rating will continue after cessation of treatment until the Secretary obtains an examination
to determine the appropriate disability ratings for any residuals. Id. at 8-10.
5
III. ANALYSIS
A. The Text of the Regulation
First, we will address the text of the note to DC 7343. After all, that is the starting point of
any regulatory interpretation. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). In
so doing, if no uncertainty exists, the "regulation then just means what it means—and the court
must give it effect." Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also id. at 2419 (courts
"must apply all traditional methods of interpretation to any rule, and must enforce the plain
meaning those methods uncover"). If the plain meaning of the regulation is clear from its language,
then that meaning controls and "that is 'the end of the matter.'" Tropf v. Nicholson, 20 Vet.App.
317, 320 (2006) (quoting Brown v. Gardner, 513 U.S. 115, 120 (1994)). We now turn our attention
to the regulation.
The first sentence of the regulation's note tells us that "[a] rating of 100 percent shall
continue beyond the cessation of any [treatment]." § 4.114, DC 7343, Note. Thus, it makes clear
at the inception that it is discussing a situation when the veteran is already receiving a 100% rating
for service-connected cancer. Otherwise, there would be no 100% rating to "continue." This also
clues us in on the prospective nature of the regulation.
The second sentence then tells us that "[s]ix months after discontinuance of such treatment,
the appropriate disability rating shall be determined by mandatory VA examination." § 4.114, DC
7343, Note. Again, we read this to be prospective. It, in conjunction with the first sentence, refers
to a veteran who was service connected for cancer while he either actively had that cancer, was
undergoing treatment for that cancer, or was in the six-month convalescence period after treatment
for that cancer. After all, it would be impossible for VA to conduct an examination six-month after
cessation of treatment if that were not the case. See R. at 8-9 (the Board determined that VA
examinations could not have been conducted at the end of the 6-month periods following the
cessation of Mr. Breland's treatment because the tongue cancer ratings were assigned
retroactively).
What's more, VA would have no obligation to conduct such an examination unless the
cancer was already service connected, given that VA does not examine veterans for rating purposes
unless they are first service connected. When a condition is not service connected, VA never
reaches the downstream question of compensation. See Grantham v. Brown, 114 F.3d 1156, 1158
(Fed. Cir. 1997). Mr. Breland overlooks this point. Adopting his position would have us ignore the
6
fact that, because he was not yet service connected for cancer either when he had active cancer,
when he was undergoing treatment, or shortly after cessation of that treatment, VA would have
had no need to conduct an examination looking for recurrence, metastasis, or residuals at that time.
We would also have to ignore that the examination is meant to take place 6 months after the
cessation of treatment.
The regulation's third sentence provides: "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)." § 4.114, DC
7343, Note. Here again, we deal with forward-looking actions. The procedures for a reduction
come only after the veteran has already been service connected and rated; otherwise, there would
be no "change in evaluation" or a need to reference § 3.105(e) (notice requirements for reducing
an evaluation of a service-connected disability) because there would be nothing to reduce. Thus,
if, as here, VA is deciding the rating retrospectively, there is no proposed rating change.
Therefore, contrary to Mr. Breland's contentions, the plain meaning of DC 7343's note is
not that, where service connection and ratings for tongue cancer are retroactively assigned years
after the cancer has been eradicated and treatment has ceased, a 100% rating will continue until
the date that a VA examination regarding residuals is conducted. This would lead to compensation
based on pure regulatory presumption and unmoored from any medical reality. Consider Mr.
Breland's situation. He would receive a 100% rating for active cancer for almost a decade, when
cancer was not present during that period. We have already rejected such a result in similar
circumstances. See Rossiello v. Principi, 3 Vet.App. 430, 433 (1992) (the 100% rating cannot
continue past the 6-month period following cessation of treatment because "the basis for the 100%
rating, in the absence of 'local recurrence or metastases,' no longer exists," quoting 38 C.F.R.
§ 4.97, DC 6819, Note (1991)).
In addition, the history and purpose of the regulation reinforces our reading of the note. See
Kisor, 139 S. Ct. at 2415 (before concluding that a rule is ambiguous, a court must exhaust all the
traditional tools of construction and, to make that effort, must carefully consider the text, structure,
history, and purpose of a regulation). Taking a step back to when VA proposed to amend DC
7343's note to its current form, we find support for reading the note as covering prospective
conduct only.
The note previously provided that the 100% rating would continue for 1 year following
cessation of treatment. In its Federal Register notice, VA explained that the reason behind the
7
examination requirement at 6 months after cessation of treatment was to ensure that the evaluation
reflected actual medical findings, rather than a regulatory presumption. 65 Fed. Reg. 48,205,
48,206 (2000). Mr. Breland's reading would not only lead to the exact opposite, it would also
effectively extend the presumptive period far beyond its original pre-amendment contours. In other
words, no matter what the medical evidence showed, he would like to keep the 100% rating for
nearly a decade, during which time he did not have active cancer and was not receiving treatment.
This would eviscerate the purpose behind the examination. Which, again, is to prospectively obtain
data VA can use when assigning a rating; i.e., either for continuing the 100% rating because cancer
has recurred or metastasized, or for residuals.
Besides the forward-looking purpose of the examination, VA also laid out the prospective
nature of the reduction cross-reference. VA explained that, if the results of the examination
warranted a reduction in evaluation, the reduction would be implemented under § 3.105(e). This
would give the veteran contemporaneous notice of any proposed action. 65 Fed. Reg. 48,206. This
too indicates that the regulation note is prospective as it describes the procedures for evaluating a
veteran with a current 100% rating for service-connected cancer after treatment ends. If this were
not the case, it would be unnecessary to discuss (1) the reduction of an evaluation, as there would
be no evaluation to reduce; and (2) contemporaneous notice for a veteran relying on that evaluation
already in effect.
We also find instructive the Federal Register notice discussing a similar amendment to an
analogous regulation: 38 C.F.R. § 4.97, DC 6819 (malignant neoplasm of the respiratory system).
The previous note for DC 6819 provided a 2-year period for the 100% rating and lacked the
provision referencing § 3.105(e). The amendment, which became effective October 1996, changed
the note to the current version, see 61 Fed. Reg. 46,720, 46,721 (1996), which is nearly identical
to DC 7343's note.
In the Federal Register notice, VA noted that one commenter believed that applying
§ 3.105(e) would cause administrative problems and significantly lengthen the period of a total
evaluation when claims were received months or years after surgery—a situation like Mr.
Breland's case. See 61 Fed. Reg. 46,721. The commenter stated that there would be an
inconsistency where a 100% rating was retroactively assigned (i.e., where the veteran went from
no disability compensation to 100%) and where, simultaneously, VA sprang into action to provide
the process under § 3.105(e) (presumably, notice and a VA examination) for reduction of the 100%
8
rating. But, VA put this issue to rest. It explained that, because "§ 3.105(e) applies only to
reductions in 'compensation payments currently being made,' it does not apply where a total
evaluation is assigned and reduced retroactively." Id. This is the same conclusion that we reach
today.
Thus, we find that, based on a plain reading of the note to DC 7343, this regulation
contemplates prospective action and therefore, as we will discuss later, the prospective procedures
contained in the DC are inapplicable when VA awards benefits retroactively.
B. Staged Ratings
Our reading of the regulation dovetails with the Court's precedent for analogous and other
staged ratings; namely, Tatum. But, Mr. Breland argues that his rating under DC 7343 could not
be a staged rating. First, he asserts that this is because the only possible rating is 100%. But he
ignores 38 C.F.R. § 4.31. Under this regulation, VA assigns a 0% rating when the requirements
for a compensable rating are not met. See 38 C.F.R. § 4.31 (2019). That is just what VA did, R. at
1431-32, and is the correct result.
Once Mr. Breland reached the point where it had been 6 months after treatment had ceased
and his cancer was inactive, he no longer met the requirements for a compensable rating. Thus,
§ 4.31 kicked-in and he received a noncompensable rating. With the 0% rating, Mr. Breland
remains service connected for tongue cancer, meaning he does not have to reestablish service
connection for that condition if it were to recur in the future. But he receives a noncompensable
rating for the periods that the cancer is inactive and where there is no local recurrence or metastasis.
Because Mr. Breland's argument that VA could not assign a noncompensable rating is incorrect,
his first argument about why Tatum is inapplicable—i.e., because a staged rating is impossible
where he could only be rated at 100%—fails.
Second, without any analysis or supporting authority, the veteran contends that residual
ratings are "separate" ratings and thus not a staged rating. See Appellant's Reply Br. at 7. But, we
addressed a similar issue in Tatum when we reviewed DC 7528, a code that is almost identical to
DC 7343. DC 7528 provides a 100% rating for malignant neoplasms of the genitourinary system
and includes a note instructing that, after treatment, "'the rating of 100[%] shall continue with a
mandatory VA examination at the expiration of six months. Any change in evaluation based upon
that or any subsequent examination shall be subject to the provisions of § 3.105(e)[]. If there has
been no local reoccurrence or metastasis, rate on residuals[]'." Tatum, 24 Vet.App. at 142, quoting
9
38 C.F.R. § 4.115b, DC 7528, emphasis omitted. Mr. Tatum had a prostatectomy on October 29,
2001. Id at 140. On February 28, 2002, he filed a claim for service connection. Id. In September
2002, an RO granted a 100% rating for prostate cancer from February 28, 2002, to May 1, 2002
(around 6 months after his prostatectomy), and a noncompensable rating for prostate cancer
residuals from May 1, 2002. Id. The Court expressly referred to this evaluation, assigned under
DC 7528, as a staged rating, id. at 143 ("there is no dispute that Mr. Tatum was not receiving
compensation at the time the staged rating was assigned"), noting that a staged rating is simply a
"rating that looks backwards and retroactively assigns specific ratings to discrete periods," id. at
141 n.6 (citing Reizenstein, 583 F.3d at 1337). Mr. Breland fails to explain why the Court's
understanding of staged ratings in Tatum should not apply here, see Locklear v. Nicholson, 20
Vet.App. 410, 416 (2006) (the Court will not entertain underdeveloped arguments), and thus his
second argument is also unpersuasive.
Third, Mr. Breland argues that the note in DC 7343 presents a different circumstance than
the circumstances for a staged rating because the note specifically provides that reductions are
subject to § 3.105(e) and staged ratings are not. Oral Argument at 23:57-24:47, 44:15-45:38,
Breland v. Wilkie, U.S. Vet. App. No. 18-5980 (oral argument held April 28, 2020); see also id. at
43:00-44:15 (asserting that Tatum did not refer to 3.105(e)). He also contends that Tatum was not
focused on the issue presented here and thus the references the Secretary attempts to extrapolate
are of no benefit. Id. at 43:00-44:15. We disagree.
In fact, we already rejected this line of attack in Tatum. There, the veteran sought to
distinguish his case from the typical staged rating case addressed in O'Connell v. Nicholson, 21
Vet.App. 89 (2007), which involved an interpretation of § 3.105(e) on its own. Tatum, 24 Vet.App.
at 144. Mr. Tatum argued that he was not bound by O'Connell's interpretation of § 3.105(e)
because his case concerned the interpretation of this regulation within the context of his DC—one
that explicitly mandates a medical examination and notice before there is any change in evaluation.
Id. But, we found this to be "a distinction without a difference." Id. Likewise, we also found that,
although O'Connell did not involve a DC that mandated an examination, that too was "a distinction
without a difference." Id. Instead, we found that "Mr. Tatum's contention that DC 7528 expressly
contains a notice requirement is overstated. Rather than expressly requiring notice, DC 7528
requires compliance with § 3.105(e), and[] § 3.105(e) requires notice only before there is a
reduction in compensation." Id. (emphasis added).
10
We do not see a reason to depart from Tatum when interpreting DC 7343, given that the
Court there reviewed a DC note almost identical to DC 7343. Thus, we read DC 7343 to require
the following when the rating is retroactively awarded: (1) VA may assign a noncompensable
rating for malignant neoplasms when the cancer is inactive and treatment has ceased (i.e., the
veteran remains service connected for that cancer)—this noncompensable period for the cancer
itself will often coincide with the rating period for cancer residuals; (2) these retrospective discrete
ratings are staged ratings; and (3) notice and a VA examination 6 months after cessation of
treatment is only required where current compensation would be reduced, which is not what occurs
when assigning a retroactive staged rating.
C. Retroactive Assignment
In addition, our reading of DC 7343 dovetails with our precedent on retroactive ratings,
such as Reizenstein. That case concerned § 3.343(a), which provides that "[t]otal disability ratings
. . . will not be reduced . . . without examination showing material improvement in physical or
mental condition." The Board had granted staged ratings, including a temporary total disability
rating, and Mr. Reizenstein argued that the Board reduced the total disability rating without
complying with the requirements of § 3.343(a). Reizenstein, 22 Vet.App. at 203, 205.
We held that § 3.343(a) contemplates prospective action and was thus inapplicable to
staged ratings, which are retrospective. Id. at 209. We found that such an application "would be
imposing unnecessary procedure in a situation where such procedure is unwarranted." Id. We also
explained that the Board's decision entitled the veteran to back pay for the periods during which
the Board determined that a rating higher than what he received was warranted and did not
constitute a situation in which the Board abruptly reduced the amount of compensation he was
receiving without evidence that his condition had improved. Id. at 208.
We recognize that § 3.343(a) and § 4.114, DC 7343, are under different parts of the C.F.R.
(Adjudication and Schedule for Rating Disabilities, respectively). But, like in Tatum, this appears
to be "a distinction without a difference," 24 Vet. App. at 144, particularly where both regulations
concern 100% ratings, instruct that an examination be administered, and are prospective. As we
explained in Reizenstein, § 3.343(a) contemplates prospective action and was intended to protect
veterans who had come to rely on disability ratings already in effect. 22 Vet.App. at 209. Similarly,
the language in DC 7343's note, as well as relevant Federal Registers, reflects that the regulation
is also prospective and intended to protect veterans relying on current ratings.
11
Thus, Mr. Breland's assertion that the retroactive assignment of his rating "is of no
moment," Appellant's Br. at 5, is incorrect. Because retroactivity is a relevant issue here, the Board
was right to discuss it. It was also proper for the Board to consider the impossibility of an
examination 6 months after cessation of the veteran's tongue cancer treatment. Put another way,
we see no error in how these issues factored into the Board's consideration of whether the veteran
was entitled to a 100% rating from the date of service connection. R. at 8-9. And so, we reject Mr.
Breland's assertion that the Board's explanation was at odds with the regulation note.
We further hold that, like in Reizenstein, because the note to DC 7343 contemplates
prospective action, the prospective procedures contained therein—an examination 6 months after
cessation of treatment and contemporaneous notice of any proposed action based on that
examination under § 3.105(e)—are inapplicable to retroactively awarded cancer benefits, where
such an application would impose unnecessary procedure. See Reizenstein, 22 Vet.App. at 209.
But, we note that DC 7343 must nevertheless be used to guide VA when it retroactively grants
service connection and assigns ratings for malignant neoplasms of the digestive system. For
example, although it may not be possible to conduct a VA examination 6 months after treatment
ceases for a retrospective award, VA should, as it did in Mr. Breland's case, ascertain from the
available record (1) if the cancer recurred or metastasized; (2) when treatment ended (so as to
ensure that the effective date for the 100% rating extends for 6 months after the date that treatment
was completed); and (3) if there are any residuals, when those began, and their severity.
D. Other Evidence of Record
This brings us to our final point. VA must still have adequate evidence to rate a veteran's
tongue cancer and any residuals. And when VA retroactively awards service connection and
assigns ratings, those disability ratings and effective dates will be based on the evidence of record,
so long as it contains the requisite information to make such determinations. See Reizenstein, 22
Vet.App. at 208-209 (the Board sought to ensure that the veteran was properly compensated for
the varying severity of his condition during the pendency of his appeal by undertaking a complete
review of the evidence to determine the appropriate disability ratings and the correct effective
periods for those ratings); Bennett v. Brown, 10 Vet.App. 178, 183 (1997) (finding that any RO
failure to schedule an examination following cessation of treatment was not prejudicial error
because examinations conducted one to two years later confirmed the absence of recurrence and
12
therefore supported the rating change that had taken place based on residuals, effective the date
the 100% cancer rating ended).
As the note itself and the Federal Register reflect, the point of the examination prescribed
in DC 7343 is to get a clear picture of the veteran's health and ensure that VA assigns cancer and
residual ratings and effective dates based on actual medical findings, rather than on a set
presumptive period. See 65 Fed. Reg. 48,206. Here, VA had plenty of evidence of Mr. Breland's
medical history. Thus, VA could retroactively establish the dates of active cancer, the 6-month
periods following cessation of treatment, and when residuals began, along with their severity. For
example, a November 2006 private medical record noted a diagnosis of tongue cancer. R. at 1833.
And another record showed that Mr. Breland was done with chemotherapy and radiation therapy
in 2007. See R. at 1280; see also R. at 1431 (a January 17, 2007, medical record reflected that the
veteran was "about 10 days out from radiation therapy"). Then, a January 2008 private medical
record showed that he was again diagnosed with tongue cancer. R. at 1284. Next, a July 2008
private medical record revealed no evidence of malignancy. R. at 1209; see also R. at 1698 (a May
2010 VA examination showing no recurrence). Thus, the RO assigned 100% ratings until at least
6 months following cessation of treatment for both periods of active cancer. See R. at 205-06,
1431. What's more, there was evidence that backed the Board's finding that Mr. Breland suffered
from residuals from August 1, 2007, and thus warranted an earlier effective date for those
conditions. R. at 10-11; see also R. at 609-26 (September 2017 VA examination addressing cancer
residuals).
The bottom line is, VA had a clear picture of Mr. Breland's health and could assign ratings
and effective dates based on actual medical findings. Thus, we see no merit in his contention that
he was entitled to retain the 100% rating until October 2017, the date following the second VA
examination. See Tatum, 24 Vet. App. at 145 (finding that the information in a medical opinion,
and not the date the medical opinion was provided, is the relevant component when assigning an
effective date). Mr. Breland got the benefit of the note to DC 7343—a 100% rating from the date
of service connection until 6 months following cessation of treatment for both active cancer
periods. Although Mr. Breland argues that the 100% rating must continue until VA determined the
appropriate residual ratings, we have already held that any error in evaluating residuals of a
malignant neoplasm does not render the termination of a 100% rating itself improper and does not
warrant reversal and reinstatement of the prior 100% evaluation. Rossiello, 3 Vet.App. at 431–33
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(holding that the effective date for the residual condition was the date that the 100% cancer rating
ended).
E. Summary
In sum, the note to DC 7343 is prospective and thus the prospective procedures—i.e., the
examination 6 months after cessation of treatment and contemporaneous notice of any reduction—
are not strictly applicable when VA awards service connection and disability ratings retroactively.
This is particularly true where the record contains sufficient evidence for VA to ascertain a clear
picture of the veteran's health and assign ratings and effective dates based on those actual medical
findings. Here, based on such evidence and the note to DC 7343, VA continued the 100% tongue
cancer rating from the date of service connection until 6 months following cessation of treatment
for both periods and then assigned ratings based on his residuals, effective from August 1, 2007,
the date after the first 100% cancer rating ended. Thus, contrary to Mr. Breland's contentions, he
may not retain the 100% cancer rating from the date of service connection until October 1, 2017,
the month following the second VA examination.4
IV. CONCLUSION
On consideration of the foregoing, the portion of the June 27, 2018, Board decision denying
a compensable initial rating for service-connected tongue cancer from August 1, 2007, to January
16, 2008, and from September 1, 2008, to present is AFFIRMED. The remainder of the appeal is
DISMISSED.
Greenberg, Judge, concurring in part and dissenting in part: Although I agree with the
majority's analysis regarding the appellant's argument, I write separately to address a matter not
raised by the appellant. In October 2006, a PET scan confirmed the existence of squamous cell
cancer at the right base of the tongue. R. at 1835-37. In September 2007, a private physician record
states that the appellant's "last x-rays were done in July and look fine." R. at 1895. Although blood
4
We acknowledge our dissenting colleague's concerns; but, because Mr. Breland did not raise this issue in
his briefs or at oral argument, we did not address it. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)
(the Supreme Court stating that our system is designed around the premise that parties represented by competent
counsel know what is best for them and are responsible for advancing the facts and argument entitling them to relief,
and that courts normally decide only questions presented by the parties).
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work was provided during this evaluation, no PET scan was performed. R. at 1895-98. In January
2008, a PET scan revealed tongue cancer. R. at 1280.
The majority notes that "VA explained that the reason behind the examination requirement
at 6 months after cessation of treatment was to ensure that the evaluation reflected actual medical
findings, rather than a regulatory assumption." Majority Opinion at 7, citing 65 Fed. Reg. 48206(emphasis added). The majority also acknowledges that rating based on residuals does not occur
unless there has been "no local recurrence or metastasis." Id., quoting Rossiello v. Principi, 3
Vet.App. 430, 433 (1992). The medical evidence does not reflect that the appellant was cancer free
for six months after the discontinuance of treatment in January 2007. Rather this finding is based
on a mere assumption. The evidence reflects that the first PET scan of record following initial
treatment, the test that originally confirmed a malignancy, revealed cancer. The medical evidence
of record is insufficient to establish that the appellant was cancer free for 6 months following
treatment as required by the regulation. The evidence simply establishes that the appellant had
cancer in January 2008, not that the appellant was cancer free 6 months after his January 2007
treatment. Admittedly, VA was not required to provide the appellant an examination in July 2007
(6 months after treatment ended) because he was not service connected at the time for cancer. At
the very least, however, the requirement of this medical examination in the rating schedule
demonstrates the importance of having actual medical evidence to reduce a 100% rating for cancer.
The Board erred in this matter by not performing the proper analysis in its assignment of a
disability rating. This veteran should have been in receipt of a 100% rating for an active
malignancy until September 2008, 6 months after his surgery. Contrary to the purpose of the
regulation, the appellant's cancer was not rated based on actual medical findings. The facts here
demonstrate the importance of affording a Vietnam War veteran the benefit of the doubt, especially
as it relates to the unpredictable nature of cancer. See 38 U.S.C. § 5107(b). For this reason, while
I concur in the majority's analysis regarding the appellant's argument, I ultimately dissent from the
affirmance of the June 2018 Board decision on appeal.
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