Citation Nr: 0519845 Decision Date: 07/21/05 Archive Date: 08/03/05 DOCKET NO. 04-00 028 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to restoration of a 100 percent schedular rating for service-connected arachnoiditis with cervical and lumbar neuropathies and migraine headaches, from January 1, 2003. 2. Entitlement to restoration of special monthly compensation for the period from January 1, 2003, to April 12, 2003. REPRESENTATION Appellant represented by: John B. Gately, Attorney ATTORNEY FOR THE BOARD D. Bredehorst, Counsel INTRODUCTION The veteran served on active duty from November 1995 to August 2000. In a March 2001 rating decision, the RO granted service connection, inter alia, for arachnoiditis with cervical and lumbar neuropathies and migraines, and assigned a 100 percent disability rating. In addition, special monthly compensation was awarded. In March 2002, a rating decision proposed reduction in the rating to 80 percent, after rating the disability based solely on the residuals of arachnoiditis and discontinuance of special monthly compensation, effective January 1, 2003. A notice of disagreement (NOD) of the March 2002 proposed rating decision was filed in June 2002. In July 2002, the RO informed the veteran that her NOD could not be accepted because a final decision had not been made regarding the proposed reduction and discontinuance. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision in which the RO reduced the 100 percent rating for arachnoiditis by discontinuing the single rating and providing separate ratings for the residuals of the disease. In doing so, a 50 percent rating was assigned for migraine headaches, a 30 percent rating was assigned for cervical neuropathies, and a 40 percent rating was assigned for lumbar neuropathies. All of these ratings, along with the discontinuance of special monthly compensation, were effective January 1, 2003. The veteran filed a notice of disagreement (NOD) in March 2003 and the RO issued a statement of the case (SOC) in October 2003. The veteran filed a substantive appeal in December 2003. The March 2003 NOD included a request for a local hearing before a member of the board (travel board); however, this request was later withdrawn in the substantive appeal. Although an October 2003 rating decision granted special monthly compensation effective April 13, 2003, the veteran's appeal for special monthly compensation remains viable for the period from January 1, 2003, to April 12, 2003, as this is only period pertinent to the appeal in which this benefit is not in effect. FINDINGS OF FACT 1. All notification and development action needed to render a fair decision on the issues on appeal has been accomplished. 2. In March 2001, the RO granted service connection and assigned a 100 percent rating for arachnoiditis with cervical and lumbar neuropathies and migraine headaches, effective August 12, 2000. 3. In March 2002, the RO proposed elimination of special monthly compensation and reducing the veteran's single rating for arachnoiditis with cervical and lumbar neuropathies and migraine headaches from 100 percent to a lesser combined rating by rating only the residuals, which resulted in combined 80 percent rating. In October 2002, the RO implemented the reduction, effective January 1, 2003. 4. When the medical findings that formed the basis for the disability rating of 100 percent, at the time service connection was granted are compared with later records, to include a November 2001 examination report, the evidence reflects improvement in the veteran's overall arachnoiditis with cervical and lumbar neuropathies and migraine headaches. 5. For the period from January 1, 2003, to April 12, 2003, the veteran's service-connected disabilities did not meet the schedular rating requirements for special monthly compensation, nor is there any evidence to indicate that she was substantially confined as a direct result of service- connected disabilities to her dwelling and the immediate premises. CONCLUSIONS OF LAW 1. As the rating for the veteran's arachnoiditis with cervical and lumbar neuropathies and migraines was properly reduced from 100 percent to a combined rating of 80 percent, effective January 1, 2003, the criteria for restoration of the 100 percent rating from that date are not met. 38 U.S.C.A. §§ 5107, 5112(b) (West 2002); 38 C.F.R. §§ 3.105(e), 3.344(c), 4.1, 4.2, 4.14, 4.31, 38 C.F.R. § 4.124a, Diagnostic Code 8020 (2004). 2. As discontinuance of special monthly compensation was proper for the period from January 1, 2003, to April 12, 2003, the criteria for restoration of special monthly compensation for that period are not been met. 38 U.S.C.A. §§ 5107, 5112(b), 114(s) (West 2002); 38 C.F.R. §§ 3.105(e), 3.344(c), 3.350(i) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations essentially include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision on the claims on appeal has been accomplished. Through the December 2003 SOC and the RO's letter of July 2001, the RO notified the veteran and her representative of the legal criteria governing the claims currently under consideration, the evidence that has been considered in connection with the claims, and the bases for RO's determinations. After each, they were given the opportunity to respond. Hence, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support the claims. The Board also finds that the notice letter of May 2003 satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). To that end, the RO notified the veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The letter also requested that he identify and provide the necessary releases for any medical providers from whom he wished the RO obtain medical records and consider evidence. Pursuant to the aforementioned document, the veteran has also been afforded the opportunity to present evidence and argument in support of her claims. The Board points out that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained above, the first three requirements have been met in the instant case. With respect to the fourth requirement, it does not appear that the veteran has been given explicit notice regarding the need to submit all pertinent evidence in his possession; however, the Board finds that actions of the RO have put the veteran on notice of the need to give to VA any evidence pertaining to her claim. As she was informed of the evidence needed to support her claim, it is reasonable to expect that she would submit any such evidence identified by the RO that was in her possession. As such, the Board finds that all four content of notice requirements have essentially been met. However, Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA- administered benefits. In the present case, the documents meeting the VCAA's notice requirements were provided before and after the rating action on appeal; however, the Board finds that any lack of pre-adjudication notice in this case has not prejudiced the veteran in any way. As noted above, the RO issued the October 2003 SOC explaining what was needed to substantiate the veteran's claims and the veteran was thereafter afforded the opportunity to respond. Moreover, the RO notified the veteran of the VCAA duties to notify and assist in its May 2003 letter. The Board also emphasizes, as indicated above, that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran. In addition to notice previously mentioned, the Board notes that at the time of the proposed reduction in March 2002, the veteran was informed that she had 60-days in which to submit evidence that the improvements noted by the RO did not provide an accurate picture of her disability. Thereafter, the RO received private medical records regarding her disability. In addition, the RO obtained VA Medical Center (VAMC) medical records have been associated with the claims file and afforded the veteran VA examinations. Significantly, neither the veteran nor her attorney has identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Hence, to whatever extent VA has failed in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim under consideration, such error is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102. Under these circumstances, the Board finds that there is no prejudice to the veteran in proceeding, at this juncture, with a decision on each claim on appeal. II. Background Medical evidence from the VA Medical Center (VAMC) in Charleston, South Carolina, dated in August 2000, indicates the veteran underwent a ventriculoperitoneal shunt insertion. Her medical history indicated that she had experienced headaches and arm pain after repeat lumbar punctures that resulted in acquired Chiari I malformation, increased intracranial pressure, and papilledema. An October 2000 VA examination report notes complaints of chronic low back pain that radiated to the right leg and heel, and to the left buttock and thigh; constant occipital headaches and neck pain that radiated to her mid back shoulders; and positional arm pain that radiated into both arms. The veteran also reported arm numbness at night. The examiner indicated that the veteran was independent for feeding and toileting, but required some assistance for walking, dressing, grooming, and bathing, and that she used a cane. On examination, the veteran had a markedly antalgic gait and questionably positive Romberg. She was unable to tandem walk. Finger-to-nose movement was performed accurately and rapid alternating movements were well preserved. All other neurological findings were normal. VAMC records show that the veteran was again hospitalized in November 2000 for her Chiari I malformation and underwent decompression. Progress notes dated in March 2001 indicate that she continued to experience symptoms and that she continued to manage her pain with large doses of narcotic medications. Private medical records from MUSC Neurosurgery Service, dated in March 2001, briefly note the veteran's medical history of Chiari Type I malformation. The correspondence indicates that she had had a VP shut and a bony decompression at the craniocervical junction that offered her some relief. The note also indicated that her pain and headaches had reoccurred. On examination, she had a well-healed surgical incision. There were full extraocular movements and normally reactive pupils. Her optic disks were normal. She had some difficulty with standing with her feet together and her eyes closed and a little bit of difficulty with tandem walking, although she was noted not to have lost her balance. Records from MUSC indicated that the veteran was seen for a follow-up visit in April 2001. The veteran reported intermittent occipital headaches that could last from two to twenty-four hours. On examination, pupils were reactive, reflexes were normal, and her face was symmetric. The progress note also indicated that the veteran was in no apparent distress and her neurological examination was unchanged. An ophthalmology examination from March 2001 revealed no evidence for increased ICP or papilledema. The most recent MRI was reviewed and it revealed good CSF behind the cerebellum with evidence for a good Chiari decompression. The impression was that an MRI had revealed resolution of her Chiari malformation. MUSC records, dated in May 2001, note complaints of headaches for three days and she was to be seen for evaluation of shunt malfunction. Medical records from the Charleston VAMC, dated in October 2001, indicate that the veteran was seen to establish medical care. She complained of daily headaches and also reported episodes of pain that lased from hours to days accompanied by nausea following an unsuccessful shut replacement in September 2001. She reported using phenergan daily for pain and only used Zofran when pheneran did not work. The veteran indicated that she frequently saw fixed dots in visual field, especially when her headaches were bad. Records from the Pain Management Clinic, dated from April to November 2001, indicate the veteran complained of chronic headaches, nausea, neck pain, and bilateral upper and lower extremity neuropathic type complaints that included burning and tingling in all extremities. She also reported continued problems with cerebellar instability, particularly with closing her eyes. She reported some memory loss as well as persistent arm and leg numbness, bilaterally. On physical examination, there was some pain on palpation of a well- healed cervical occipital scar in the midline, posteriorly and in the paraspinous muscles adjacent to it. She had pain on flexion, rotation, and extension of the head. She denied pain in the lower cervcical or bilateral trapezius regions. There were grossly normal sensory and motor functions, bilaterally, in the upper and lower extremities. Examination of the thoracolumbar region revealed no pain on palpation. The remaining records continue to show complaints of headaches. Headaches were considered to be due to increased ICP from Chiari malformation and a poorly functioning ventriculostomy shunt. It was expected that the shunt would be revised in the near future. In the interim, however, she was having severe headaches that were not responding well to narcotics at the present dosage. Physical examinations revealed that the veteran's sensory and motor skills were grossly neurologically intact in the upper and lower extremities, bilaterally. Funduscope examination did not reveal clear papilledema. The report of a November 2001 VA examination reflects the veteran's report of being incapacitated by constant pain. Her reports of headaches with associated nausea and vomiting were consistent with previous complaints. She also complained of blurred vision, but not diplopia, and reported constant low back pain with radiation to both legs, with the right more severe than the left. The veteran also complained of neck pain. On examination, there was significant restricted cervical range of motion in all direction with an increase of pain with attempted range of motion maneuvers. The motor examination demonstrated a postural tremor of the upper extremities symmetrically, but there was no resting tremor or cogwheeling. Strength, tone, and fine motor movements were normal. Finger-to-nose testing was normal and ambulation demonstrated a right antalgic gait. Private medical records, dated in November 2001, indicate that the veteran underwent a CT head scan. The impression was that the shunt was functioning appropriately and there was no evidence of hydrocephalus. A note from a physician at the Navel Hospital in Charleston, dated in April 2002, indicates that the veteran experienced symptoms of severe episodic headaches, persistent severe nausea and vomiting, sleep deprivation, and short-term memory loss. In a September 2002 letter, Arthur R. Smith, M.D., indicated that he has treated the veteran since April 2001. The physician noted that the veteran suffered from severe headaches and associated nausea and vomiting due to an acquired Chiari malformation and arachnoiditis. The physician indicated that, despite a functioning VP shut, her pain was debilitating and required her to lie down and rest frequently. The report of a June 2003 VA examination reflects that the veteran's complaints were consistent with previous reports. She also reported problems with balance, which led to miscellaneous difficulty as falling in the shower if she closed her eyes to rinse shampoo from her hair. She also reported short-term memory loss. On examination, her gait was normal. Range of motion of arms, legs, and back were normal. Also normal were tendon reflexes at knees and ankles, toe, ankle strength, straight leg test, and strength of all the major muscle groups in the extremities. She indicated that she fatigued quickly and all movements was complicated by pain. There were no apparent deficits. In a May 2004 statement, Rochelle C. Rutledge, M.D., indicated that she has been seeing the veteran for several years. The status of the veteran's medical condition was noted and the physician opined that the veteran was unable to deal with any environmental stressors other than self-care and the care of her young child. III. Analysis Initially, the Board notes these claims are not claims for increased evaluations. Rather, they are claims for restoration of benefits. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that the evidence does not indicate, nor does the veteran contend, noncompliance with the procedural requirements for rating reductions. See 38 C.F.R. § 3.105(e). In this regard, the Board notes that a March 2002 rating decision proposed discontinuance of special monthly compensation and reduction of the single 100 rating assigned for arachnoiditis with cervical and lumbar neuropathies and migraines by rating only the residuals of the disability, which resulted in a combined rating of 80 percent. The October 2002 rating decision effectuated the reductions, effective from January 1, 2003. In the interim, the veteran was afforded the opportunity to present evidence and argument as to why the reductions should not take place. Under these circumstances, the Board will only focus its analysis on whether the reductions were warranted. The Board notes that the provisions of 38 C.F.R. §§ 3.344(a) and (b), which govern reductions of ratings in effect for five or more years, do not apply in this case because special monthly compensation and the 100 percent rating for the veteran's arachnoiditis with cervical and lumbar neuropathies and migraines were in effect less than three years. As regards disability ratings in effect for less than five years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c) (2004). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). A. Arachnoiditis with cervical and lumbar neuropathies and migraines As noted above, the criteria for a reduction are found in 38 C.F.R. § 3.344(c), which requires evidence, in the form of examination, that reveals improvement. Improvement may be gauged by medical findings in conjunction with the diagnostic code pursuant to which the disability is rated. Originally, the veteran's arachnoiditis with cervical and lumbar neuropathies and migraines was rated, by analogy to brain abscess, under Diagnostic Code 8020. Under this code, a total rating of 100 percent is assigned for an active disease. Otherwise, the disability is rated based on the residuals of the disease with a minimal rating of 10 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8020. As the veteran's disability is rated by analogy, strict adherence to the criteria is not required; however, VA must generally consider the criteria. As regards the particular diagnostic code under which the veteran's disability is rated, there are few options. In other words, there are not multiple levels of gradation. Hence, if the disability is not comparable to active disease, then it must rated based on the residuals. Considering the above, and the evidence on which the reduction was based, the evidence not only indicated some level of improvement, but that it was then appropriate to rate the disability on the basis of residuals. At the time of the October 2000 examination, only two months had passed since the veteran had undergone a procedure to insert a shunt in her head. The veteran complained of chronic low back pain that radiated to her right leg and heel, and left buttock and thigh. She also had constant headaches, neck pain that radiated to her shoulders, and positional arm pain. The examiner indicated that the veteran walked with a cane and noted she walked with a markedly antalgic gait. Findings revealed that she was also unable to tandem walk. The examiner also indicated that the veteran was not completely capable of maintaining self-care. The RO reasoned that it was more advantageous to rate the veteran's disability as an active process, at that time, until it could be ascertained what the permanent residuals were and indicated that a future rating based on the residuals was possible. When evidence considered at the time of the initial rating is compared to additional evidence received and considered in the proposed and eventual reduction, there is some evidence of incremental improvement of her disability. In this regard, the veteran's ambulation had improved to the point that she had an antalgic gait rather than a markedly antalgic gait. Improvement was noted in other records, which indicated that the shunt insertion and decompression had offered the veteran some relief. She was also noted to have only a little difficulty with tandem walking, whereas, she was completely unable to tandem walk during the October 2000 examination. Still other records indicated that her most recent MRI revealed resolution of her Chiari malformation and that a CT scan revealed no evidence of hydrocephalus. These records provide persuasive evidence that the shunt and decompression was somewhat successful in alleviating the underlying disability as well as overall improvement. More recent records indicate her gait was normal; range of motion of her arms, legs and back were normal; and she was capable of taking care of herself and her daughter provide further evidence of the progressive improvement of her disability. While some exacerbations may have occurred, this was due to a malfunction of the shunt rather than a worsening of the disability itself. Thus, the only remaining symptoms and problems that the appellant now has appear to be related to the residuals of her arachnoiditis, namely, cervical and lumbar neuropathies and migraines. In light of the noted improvements indicating that disability comparable to active disease under Diagnostic Code 8020 was no longer present, the RO appropriately determined that rating the remaining residuals was proper. The Board has considered the veteran's assertions regarding entitlement to restoration for her 100 percent rating for arachnoiditis with cervical and lumbar neuropathies; however, as indicated above, medical improvement supporting the reduction has been shown. B. Special monthly compensation Special monthly compensation may also be payable pursuant to 38 U.S.C. §1114(s) and 38 C.F.R. § 3.350(i) where the veteran has a single service-connected disability rated as 100 percent disabling and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent- disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 U.S.C.A. § 1114(s); 38 C.F.R. §3.350(i). As the Board has concluded that the reduction of the veteran's 100 percent rating for arachnoiditis with cervical and lumbar neuropathies and migraines was appropriate, restoration of special monthly compensation benefits for the period from January 1, 2003, to April 12, 2003, is not warranted. With the reduction in effect, the veteran's disabilities no longer met the schedule rating requirements during this period. Furthermore, as discussed above, the overall evidence indicates that the veteran's service- connected disabilities resulted in some restrictions or limitations, but also reflects that she retained the ability to leave her home. The record indicates that the veteran has been able to appear for VA examinations as well as to obtain treatment through VA and private physicians. Although the record demonstrates that the veteran's gait has been antalgic, evidence pertinent to the period in question established incremental improvement to the point that she demonstrated a normal gait during the June 2003 examination. In sum, the record simply does not reflect a disability picture that is consistent with substantial confinement to one's dwelling and immediate premises during the period in question. C. Conclusion For all the reasons expressed above, the Board concludes that the reduction of the veteran's 100 percent rating for arachnoiditis with cervical and lumbar neuropathies and migraines, from January 1, 2003, and the discontinuance of special monthly compensation for the period from January 1, 2003, to April 12, 2003, were proper, and that claims for restoration of each benefit must be denied. In reaching these conclusions, the Board has considered the benefit-of- the-doubt doctrine; however, as the preponderance of the evidence weighs against each claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Restoration of a 100 percent evaluation rating for the veteran's service-connected hypertensive heart disease is denied. Restoration of special monthly compensation from January 1, 2003, to April 12, 2003, is denied. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs