Breland: Involves the length of a temporary 100% rating when there is not follow up examination.

Breland v. Wilkie, Case Number 18-5980, decided May 29, 2020 involves a higher rating after service connection for cancer.

The veteran sought and was ultimately granted service connection for tongue cancer.  DC 7343 grants a 100% rating for malignant neoplasms of the digestive system.  Importantly, a note states:

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.

The veteran argued he should retain the 100% rating until the VA gave him his mandatory VA examination, which in this case would have been a 100% rating for roughly a decade.  Id. at *5.  However, the Board found the 100% tongue cancer was assigned retroactively, therefore, a VA examination after six months was impossible and only granted the 100% rating for six months.

The Court determined that the note should be read prospectively based on the use of the phrase “shall continue” and need for an examination after six months.  It explains:

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.

 Id. at *7.

The Court then explained

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.

Id. at *9.

The Court then explained as to residuals

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.

Id. at *14. 

Judge Greenberg wrote a concurrence and dissent focused on the a scan that showed residual cancer after the date it was assumed to be gone.

 

Decision by Judge Falvey and joined in by Judge Toth with concurrence and dissent by Judge Greenberg. 

Note the case has been appealed to the Federal Circuit.

To know more about whether Thomas Andrews can help you, please visit my website.