Duron v. McDonough

1

Elsa Duron, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee

No. 23-0174

United States Court of Appeals For Veterans Claims

February 21, 2024

Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.

Amy B Kretkowski, Esq. VA General Counsel

Before TOTH, Judge.

MEMORANDUM DECISION

TOTH JUDGE

Elsa Duron, surviving spouse of Navy veteran Edward V. Duron appeals a September 2022 Board decision that denied her husband entitlement to a total rating for status post-gastroesophageal cancer residuals after April 2012, as well as a rating higher than 60% for those residuals including post-gastrectomy syndrome and gastroesophageal reflux disease (GERD) manifestations, for the same period. She argues that the Board incorrectly applied diagnostic code (DC) 7343 and, as a result, prematurely ended the veteran's 100% rating. She further argues that the Board erred by failing to address an explicitly raised residuals rating argument. Finding no error in the Board's analysis, the Court affirms.

For context, the Court first explains the rating process under DC 7343. The DC provides only a 100% rating for malignant neoplasms of the digestive system, excluding skin growths. It also includes a Note instructing that the 100% rating

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.

38 C.F.R. § 4.114, DC 7343 (2023). Importantly, "the date of 'cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure' refers to the date the veteran received final treatment for cancer and does not include treatment for residuals of cancer or the residuals of the treatment for cancer." Tatum v. Shinseki, 26 Vet.App. 443, 449 (2014).

The veteran served from 1961 to 1965 and, in 2012, filed a claim for a "gastric esophageal mass from asbestos exposure" (throat cancer). R. at 1461-69. After nearly a decade of pursuing entitlement to service connection, which included multiple remands from both the Board and this Court, Mr. Duron's throat cancer claim was granted with a 30% rating, effective February 2012. Later, a decision review officer issued a decision granting a single 100% evaluation effective February 2012 to April 2012, for status post-gastroesophageal cancer residuals, a separate 40% evaluation for status post-gastroesophageal cancer residuals effective April 2012, and a single 30% evaluation for status post-gastroesophageal cancer residuals effective April 2012.

He appealed this decision to the Board, arguing for a total rating after April 2012, and for a rating higher than 40% for his residuals. The Board granted a 60% rating, but no higher, for his residuals, but denied entitlement to a total rating after April 2012. The Board noted that Mr. Duron underwent an excision procedure of the cancer mass on October 17, 2011, and "the evidence reflects that none of the treatment procedures he underwent subsequent to the October 2011 excision pertains to his cancer." R. at 8. It thus found that April 2012 marked the sixth month since cessation of treatment and that continuing a total rating beyond April 2012 was not permitted because no additional treatment occurred after October 2011. The veteran appealed. While his appeal was pending before this Court, Mr. Duron passed away. His wife has since been substituted as the appellant in this matter.

I. 100% RATING TERMINATION

The Court reviews the Board's factual findings, like assignment of effective dates, for clear error. See Taylor v. Wilkie, 31 Vet.App. 147, 154 (2019). Under the clear-error standard, the Court may overturn a finding of the Board only if there is no plausible basis in the record for that decision and the Court has a "firm conviction" that it was erroneous. Fears v. Wilkie, 31 Vet.App. 308, 314 (2019) (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990)).

Mrs. Duron argues that the Board erred in assessing the end date for the veteran's 100% rating. She offers two arguments in support: (1) the Board relied on its own medical judgment when it determined that the veteran's treatment records did not show cancer treatment after the 2011 tumor excision, and (2) the Board failed to address a 2013 and a 2021 exam that, she says, indicated recurrence or metastasis of the veteran's cancer later than October 2011. The Court addresses each in turn but ultimately finds no error in the Board's discussion or its application of DC 7343's Note.

As to her first argument, the appellant takes issue with the Board's determination that "none of the treatment or procedures [the veteran] underwent subsequent to the October 2011 excision pertains to his cancer." R. at 8. She points to treatment records of an "exploratory laparotomy and pylorotomy" following surgery (R. at 1299), Botox injections of the pylorus and "pyloric [dilation]" in January 2012 (R. at 1301), and additional PET-CT scans^[*] (R. at 478-79) as evidence of additional treatment after the surgery, and notes that no record opinion definitively states that these treatments weren't for the veteran's cancer. Without such an opinion, she seems to say, the Board could not determine that those treatments were not for his cancer.

It's true that the Board may not rely on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). However, the Board made no such conclusions here; rather, the record contains sufficient medical evidence that supports the Board's conclusion that the veteran's 2011 excision procedure was the final treatment for his cancer. The 2013 examiner explained that, after the veteran's surgery, he "had gastric outlet obstruction, so he had to undergo exploratory laparotomy and pylorotomy." R. at 1299. And the examiner further noted that the veteran "underwent pyloric dilation and Botox injection of pylorus" in January 2012 to treat symptoms of an esophageal stricture from his esophagectomy for esophageal cancer. R. at 1301. So, the 2013 note clearly ascribes the exploratory laparotomy and pylorotomy to his gastric outlet obstruction and his Botox injections to his esophageal stricture. The 2019 note reveals the same-the veteran had an esophageal stricture dilation. R. at 478. The note also confirmed Mr. Duron had a pyloric spasm, which temporarily improved following Botox injections, but he had a "pyloectomy done by Dr. Khalil in 7/2012." Id. Finally, the 2019 record plainly states that the veteran's post-treatment PET CT scan "showed completed resolution of metabolic activity on the GE junction tumor," and no PET CT scan thereafter revealed evidence of recurrence or metastatic disease. R. at 478; see also Tatum, 26 Vet.App. at 448-49 (accepting the Secretary's contention that the "date of cessation" is "the date when the cancer was completely eradicated"). Meaning, the medical evidence clearly delineated between the veteran's cancer treatments and treatments for post-operative complications. See id. at 449. Further, there was no medical evidence ascribing these treatments to his cancer that the Board rejected based on its own medical conclusions in violation of Colvin-it simply reviewed the medical evidence of record.

This brings us to the appellant's second argument: the Board erred by mechanically applying DC 7343's Note and ignoring favorable evidence suggesting that the veteran was entitled to a later total rating end date. She claims that when the Board assigned April 2012 as the end date for the 100% rating, it ignored "VA medical opinions showing no recurrence of metastasis as of June 2013 and remission in 2013." Appellant's Br. at 11. She contends that the Note's 6-month timeframe "relates to the timing of a mandatory VA examination to determine the appropriate rating; [and that] this is not the presumptive deadline to terminate the 100% rating." Appellant's Br. at 12.

The 6-month period is not a presumptive deadline, but it is nevertheless the relevant time period in assessing whether the evidence of record shows recurrence or metastasis. The appellant cites this Court's decision in Breland v Wilkie, 32 Vet.App. 360, 371 (2020), yet ignores our affirmance of the Board's assignment of an end date through the same analysis she now contests. In that case, the Court rejected the appellant's argument that a 100% rating assigned retroactively (that is, after the veteran's cancer had already resolved) must continue until a VA exam is acquired. The requirement of an exam was prospective, we said, so it is not necessary when assigning an effective date retroactively. Instead, this Court held that, in assigning a total rating end date retroactively, the Board may "assign ratings and effective dates based on [] actual medical findings" when "the record contains sufficient evidence for VA to ascertain a clear picture of the veteran's health." Breland, 32 Vet.App. at 371. In other words, the medical evidence of record may stand in the place...