Citation Nr: 0618184 Decision Date: 06/21/06 Archive Date: 06/27/06 DOCKET NO. 05-03 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Propriety of the reduction in the evaluation for Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication, from 30 percent to 10 percent, effective from January 1, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from February 1990 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in October 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, reducing the evaluation assigned for the veteran's service-connected Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication, from 30 percent to 10 percent, effective from January 1, 2004. Pursuant to his request, the veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in May 2006, a transcript of which is of record. Additional documentary evidence was received into the record at or about the time of such hearing, along with a waiver of initial RO review of the evidence submitted. FINDINGS OF FACT 1. The October 2003 reduction in the rating assigned for the veteran's service-connected Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication, from 30 percent to 10 percent, effective from January 1, 2004, was properly effectuated. 2. The disability picture presented with respect to the veteran's service-connected Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication, more nearly approximates the criteria for restoration of a 30 percent rating therefor, effective from January 1, 2004. CONCLUSION OF LAW While the RO's reduction in October 2003 of the rating assigned for the veteran's Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication, was effectuated in accordance with 38 C.F.R. § 3.105, restoration of the previously assigned 30 percent rating for such disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7900-7903 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminarily, it is noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), became law in November 2000. To implement the provisions of the VCAA, VA promulgated regulations now codified, in pertinent part, at 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2005). The VCAA has been the subject of various holdings of Federal courts, including Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006), which held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. However, as the disposition herein reached is favorable to the veteran to the extent indicated, the need to discuss VA's efforts to comply with the VCAA and its implementing regulations and jurisprudence at this juncture is obviated. In this case, the veteran disputes the RO's action in reducing the rating assigned for his Grave's disease and its varying manifestations. He indicates that he initially was plagued by hyperthyroidism, for which he was treated by means of radioactive iodine thyroid oblation, followed by the development of hypothyroidism that has remained largely uncontrolled. Continuing fatigability, constipation, memory impairment, and elevated pulse and blood pressure are described. The record reflects that service connection for Grave's disease was established by RO action in April 2002, at which time a 30 percent rating was assigned under Diagnostic Code 7903-7900, effective from March 2, 2000. Upon receipt of additional medical data, the RO requested that the veteran undergo a VA medical examination in December 2002, and based on such evaluation and other data then on file, the RO in March 2003 proposed that the rating for the veteran's Grave's disease be reduced from 30 to 10 percent. A request for a predetermination hearing followed, and the veteran and RO personnel later entered an agreement for the withdrawal of the veteran's hearing request in exchange for the conduct of another VA medical examination. Prior to such examination, the RO in June 2003 action effectuated a reduction in the rating assigned for the veteran's Grave's disease from 30 to 10 percent, effective from September 1, 2003. Corrective action was undertaken by the RO in October 2003 in finding clear and unmistakable error in its June 2003 decision in reducing the evaluation without the conduct of the additional examination; the reduction from 30 to 10 percent for Grave's disease was nevertheless effectuated with an effective date of January 1, 2004. Further action followed in August 2005 solely for a recharacterization of the veteran's disability to that of Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication. No change in the rating assigned was effected at that time. The rating reduction in this matter was undertaken in compliance with 38 C.F.R. § 3.105 (e) and (h), and the veteran does not contend otherwise. The initial 30 percent rating was assigned by prior rating action of the RO, effective from March 2, 2000, and remained in effect until January 1, 2004, a period of less than five years. As such, subsections (a) and (b) of 38 C.F.R. § 3.344 are not for application in this instance. That notwithstanding, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re- examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, in any rating reduction case the RO and the Board are required to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet.App. 413, 421 (1995). Also, the provisions of 38 C.F.R. §§ 4.1, 4.2, 4.13 must be considered, regardless of whether the rating in question has remained in effect for five or more years. Id. at 420-421. The disability in question is rated under a combined diagnostic code for both hyperthyroidism and hypothyroidism, with the 30 percent rating under Diagnostic Code 7900 for hyperthyroidism requiring a showing of tachycardia, a tremor, and increased pulse or blood pressure. The 30 percent rating under Diagnostic Code 7903 for hypothyroidism necessitates fatigability, constipation, and mental sluggishness. In this instance, the veteran's credible testimony is corroborated by medical data identifying as of January 2004 and beyond the existence of hypothyroidism in poor control, with continuing fatigability, memory impairment, sleep difficulty, and elevated blood pressure, which when viewed as a whole depicts a disability picture that more nearly approximates the criteria for the assignment of a 30 percent schedular evaluation under Diagnostic Code 7900-7903. To that end, restoration of the previously assigned 30 percent rating assigned for Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication, effective from January 1, 2004, is found to be in order. ORDER Restoration of a 30 percent rating for Grave's disease with hypothyroidism and a history of hyperthyroidism, treated with medication, is warranted effective from January 1, 2004. ____________________________________________ WARREN W. RICE, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs