Citation Nr: 1213925 Decision Date: 04/16/12 Archive Date: 04/26/12 DOCKET NO. 06-16 567 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for hepatitis C, including as secondary to the service-connected schwannoma and meningiomas. 2. Whether a reduction in the rating for hypertension from 10 percent to noncompensable, effective May 1, 2008, was proper. REPRESENTATION Appellant represented by: Michael J. Kelley, Esq. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from April 1983 to September 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision that denied service connection for hepatitis C, and from a February 2008 rating decision that effectuated a reduction in the rating for hypertension from 10 percent to noncompensable, effective May 1, 2008. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The February 2008 rating decision reducing the rating for hypertension and the October 2008 Statement of the Case (SOC) fail to reflect consideration of or provide notice of the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. CONCLUSION OF LAW As the RO's reduction of the rating for service-connected hypertension from 10 percent to 0 percent, effective May 1, 2008, was not in accordance with law, the criteria for restoration of the 10 percent rating are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. § 3.344 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Given the favorable disposition of the claim for restoration of a 10 percent rating for hypertension, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Analysis Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Service connection for hypertension was originally established by way of a December 1988 rating decision, and a 10 percent rating was awarded effective September 20, 1988. The 10 percent rating was continued by way of the November 2005 rating decision, although the RO noted recent evidence showing an improvement in the Veteran's hypertension. Because sustained improvement was not shown at that time, the RO continued the 10 percent rating pending reexamination in 18 months. Following a review examination in August 2007, a September 2007 rating decision proposed to reduce the Veteran's hypertension rating from 10 percent to noncompensable. A February 2008 rating decision decreased the evaluation of hypertension from 10 percent to noncompensable, effective May 1, 2008. The Veteran perfected an appeal as to the February 2008 rating decision. As regards disability ratings in effect for a period of 5 years or more, which is the case here, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. See 38 C.F.R. § 3.344(c). Where a veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. 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. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As noted above, the 10 percent rating for hypertension was in effect for more than 5 years, and in fact, at the time of the reduction, was just a few months shy of being protected for being in effect for 20 years. See 38 C.F.R. § 3.951(b). Hence, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. However, the February 2008 rating decision that reduced the rating and the October 2008 SOC failed to reflect consideration of, or provide notice of, the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. No supplemental statement of the case (SSOC) was prepared on the hypertension issue, despite medical evidence providing relevant information being received since the issuance of the SOC. See 38 C.F.R. § 19.31. Among the evidence received was medical evidence noting a diagnosis of "portal hypertension" in 2007. In this case, the RO did not address whether the VA examination used as a basis for the reduction was as full and complete as the examination on which the 10 percent rating was established or whether the evidence demonstrated material improvement that would be maintained under the ordinary conditions of life, nor did the RO cite or discuss 38 C.F.R. § 3.344. See 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995). Failure to consider and apply the provisions of 38 C.F.R. § 3.344, renders the rating reduction void ab initio. See Greyzck, 12 Vet. App. at 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Accordingly, the 10 percent rating assigned for hypertension must be restored, effective May 1, 2008. Given the outcome warranted in view of this procedural defect, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. ORDER The claim for restoration of the 10 percent rating for hypertension, effective May 1, 2008, is granted. REMAND While further delay is regrettable, the Board observes that additional development is required prior to adjudicating the Veteran's claim for entitlement to service connection for hepatitis C. The Veteran's service connection claim was denied on the basis that there exists in the record no clinical relationship between the current hepatitis C and his active service. The RO noted that the Veteran had a pre-service tattoo, and that during service no hepatitis C risk factors are noted. The RO also noted in the rating decision that the post-service treatment for a brain tumor contained no evidence of blood transfusion. At the time of his February 2012 hearing, however, the Veteran testified that he self-administered his tattoo using new and clean needles, thus eliminating the pre-service tattoo as a potential hepatitis C risk factor. The Veteran argues that he had a post-service major surgery for a brain tumor, which included blood transfusion. This surgery was in 1992 and the evidence shows that he was first shown to have hepatitis C in 2001. Thus, he contends that his hepatitis C was as likely as not contracted with the blood transfusion. The Veteran's representative argues that the administration of albumin equates to a blood transfusion. See hearing transcript at pages 3 - 4. He provided a fact sheet showing that human albumin is a concentration of plasma proteins from human blood and could carry viruses. The Board notes that the Veteran's brain tumor is now service connected as schwannoma and meningiomas. Thus, the Veteran is arguing that his current hepatitis C was incurred due to treatment administered for a service-connected disability. In other words, the Veteran contends that his hepatitis C is secondary to his already service-connected schwannoma and meningiomas. Service connection may be established for disability that is proximately due to or the result of another service-connected disability. 38 C.F.R. § 3.310(a) (2011). Further, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). The March 2010 VA examination report suggests that the Veteran has not received a blood transfusion, but noted that transfusions are "clear risk factors." Again, at the time of the hearing, the Veteran through his representative argued that the "transfusion" was his receipt of albumin during the brain tumor surgery in February 1992. Although somewhat illegible, a February 1992 hospital record appears to show "Albumin 250 ml". To date, there has been no opinion based upon a review of all of the record as to the likelihood that the administration of albumin, if the records in fact establish such, was the cause of the Veteran's current hepatitis C. Accordingly, an additional opinion should be obtained on this matter. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In addition, the Veteran's September 2004 notice letter failed to address the evidence required to establish service connection on a secondary basis. Such should be provided on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Issue the Veteran a notice letter that advises him of the information and evidence necessary to substantiate his claim for service connection for hepatitis C as secondary to his service-connected schwannoma and meningiomas. 2. After the above has been completed to the extent possible, forward the Veteran's claims file to a VA physician specializing in infectious diseases or gastroenterology. In particular the examiner is asked to review the claims folder, including all medical evidence related to the Veteran's 1992 brain surgery, and to comment on whether the Veteran did receive Albumin during the surgery, or during any pre- or post-surgery treatment. If so, then the examiner is asked to state an opinion as to whether any current hepatitis C or related disability is as likely as not (50 percent probability or greater) the result of the administration of the Albumin. The medical basis for the conclusions reached must be provided. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs