Citation Nr: 0810533 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-12 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether the reduction in evaluation from 100 percent to 30 percent for service-connected thyroid disease was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The veteran had active service from August 1995 to February 1999. This appeal arose before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the above Department of Veterans Affairs (VA), Regional Office (RO), which reduced the evaluation assigned for the veteran's service-connected thyroid disease (hypothyroidism with clinical peripheral neuropathy) from 100 percent to 10 percent, effective January 1, 2005. In February 2006, the RO issued a rating decision which increased the evaluation to 30 percent, effective January 1, 2005. FINDINGS OF FACT 1. The reduction in the evaluation of the veteran's thyroid disease (hypothyroidism with clinical peripheral neuropathy) was effectuated without regard to the requirements set forth in 38 C.F.R. § 3.343(a) (2007). 2. The 100 percent evaluation assigned to the veteran's thyroid disease (hypothyroidism with clinical peripheral neuropathy) had been in effect for approximately 5 years and 11 months at the time the reduction was made effective. 3. The reduction in the evaluation was based upon evidence that was insufficient to demonstrate sustained improvement in the veteran's thyroid disorder (hypothyroidism with clinical peripheral neuropathy). CONCLUSION OF LAW The reduction in the assigned rating for the service- connected veteran's service-connected thyroid disease (hypothyroidism with clinical peripheral neuropathy) from 100 to 30 percent, effective January 1, 2005, was not consistent with the governing regulations and restoration of a 100 percent rating is therefore warranted. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (2007); 38 C.F.R §§ 3.159, 3.343, 3.344, Part 4, including §§ 4.1, 4.119, Diagnostic Code (DC) 7903 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist At the outset, 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). Such have been the subject of holdings of various federal courts. However, as the disposition herein reached is favorable to the veteran to the extent indicated, and is otherwise governed by the law and not the facts, see Sabonis v. Brown, 6 Vet. App. 426 (1994), the need to discuss VA's efforts to comply with the VCAA and its implementing regulations is obviated at this juncture. Moreover, while the veteran in this case, prior to the certification of his appeal, claimed that his condition had worsened since his last VA examination and requested a new examination, see 38 U.S.C.A. § 5107(a) (2007), Weggenmann v. Brown, 5 Vet. App. 281 (1993), the Board finds that a remand for a new examination is unnecessary due to the complete grant of the benefit sought on appeal. Reduction in Evaluation for Thyroid Disease As noted in the introduction, the instant appeal is a rating reduction case, not a rating increase case. See, e.g., Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The determination of whether restoration of a disability rating is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence supports the reduction. If so, the claim for restoration of the disability rating is denied. Conversely, if the evidence supports restoration of the previous rating, or is in equal balance, the claim for restoration is allowed. See Kitchens v. Brown, 7 Vet. App. 320 (1995). The provisions of 38 C.F.R. § 3.105(e) provide that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months.). 38 C.F.R. § 3.343(a) (2007). Additionally, for those evaluations which have been in effect for five years or more, the RO is to ensure the greatest degree of stability of disability evaluations possible. This means that those illnesses or disabilities subject to temporary or episodic improvement are not to be reduced on the results of any one examination, except in those cases where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a) (2007). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a). It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Id. Disability evaluations are determined by the application of a schedule of ratings which is based upon the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. In the instant case, the veteran was originally granted a total disability rating for thyroid disease (hypothyroidism with clinical peripheral neuropathy) under 38 C.F.R. § 4.119, DC 7903, which pertains to hypothyroidism. The rating criteria for this diagnostic code provide that a 100 percent rating is warranted when there is cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. A 60 percent rating is for assignment when there is muscular weakness, mental disturbance, and weight gain. A 30 percent rating is for assignment when there is fatigability, constipation, and mental sluggishness. A 10 percent rating is for assignment for hypothyroidism when there is fatigability or when continuous medication is required for control. 38 C.F.R. § 4.119, DC 7903 (2007). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "veteran need only demonstrate that there is 'an approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the facts of this case, the evidence of record reveals that service connection for thyroid disease was initially established by the RO in a rating decision of April 1999, at which time a 100 percent rating was assigned, effective February 18, 1999. The total disability rating assigned was not adjudged to be permanent and was noted to be subject to a future review examination. In early May 2004, the RO requested that a VA thyroid examination be undertaken for reevaluation of the veteran's thyroid disease. That examination, conducted in May 2004, showed that the veteran's thyroid disease was currently controlled by medication, but that he continued to manifest symptoms including fatigability, mild constipation, and weight gain. Mental assessment, thyroid size, pulse, blood pressure, and muscle strength were all found to be normal. A new set of tests for thyroid function, specifically showing levels of thyroid stimulating hormone (TSH) and free T4, was requested. Significantly, however, the VA examiner did not relate his findings to those of the veteran's previous April 1999 VA thyroid examination. Nor did the examiner render an opinion as to whether the veteran's condition had improved since his April 1999 total disability evaluation. By a rating decision in June 2004, the RO entered a proposal to reduce the veteran's 100 percent schedular evaluation for thyroid disease to 10 percent. The basis of such action was that the veteran's May 2004 VA thyroid examination showed that his hypothyroidism had been controlled with medication for the past four years and that his only current symptoms were weight gain, constipation, and fatigability. In the RO's July 2004 correspondence to the veteran, it was set forth that his medical records had been reviewed and that some improvement in his condition had been noted. A copy of the RO's rating decision of May 2004 was attached. The veteran was advised to notify the RO if he wished to schedule a personal hearing and to submit medical or other evidence to show why the RO should not implement the rating reduction. There is some disagreement as to what happened next. The veteran and his representative contend that the veteran filed a timely response in July 2004 and requested a personal hearing. However, the RO found that there was no evidence of such a response in the claims folder at the time of its subsequent rating decision dated in October 2004, in which it reduced the veteran's evaluation for thyroid disease from 100 percent to 10 percent, effective January 1, 2005. In this regard, the Board acknowledges that the veteran and his representative have since furnished memoranda containing written requests for a personal hearing. However, these memoranda do not include a date stamp and thus do not establish that a hearing request was made in a timely manner. The record thereafter shows that the veteran was afforded an additional VA thyroid examination in May 2005. The VA examiner found that the veteran's thyroid disease continued to be controlled by medication, but that he exhibited symptoms including fatigability, constipation, a depressed mood and libido, and constricted affect. However, as was the case with the May 2004 VA examination, the VA examiner did not compare his findings to those of the April 1999 VA examination or offer an opinion as to whether or not the veteran's condition had improved since his April 1999 total disability evaluation. Based on this latest examination, the RO in a February 2006 decision increased the veteran's rating for thyroid disease from 10 to 30 percent disabling, effective January 1, 2005. The record further shows that the veteran and his wife submitted statements dated in February 2005 and July 2005, indicating the veteran's ongoing problems with sudden weight gain, muscular pain, intolerance to cold weather, pain in the extremities, constipation, depression, irritability, nervousness, impotence, and lightheadedness. The veteran also submitted a December 2004 report from his private physician indicating that the veteran suffered from a variety of gastrointestinal problems, including constipation. Additionally, the veteran submitted private laboratory results dated in April 2005 which showed abnormal levels of TSH. Based upon a review of the record, the Board finds that the reduction in the veteran's disability evaluation was made in compliance with 38 C.F.R. § 3.105(e). The veteran received proper notice of the intent to reduce his rating and was given an opportunity to contest it before this actually occurred, including by submitting medical evidence showing a reduction was not warranted and having a hearing on the matter. While the veteran claims to have filed a timely response requesting a hearing, the RO maintains that it did not receive such a response prior to reducing the veteran's rating in October 2004, and the Board finds that the veteran has not established error on the RO's part in this regard. Accordingly, the Board finds that from a purely procedural standpoint, the steps taken to reduce the rating under this regulation were appropriate. Nevertheless, it is evident that the RO's rating reduction was effected without specific consideration or reference to 38 C.F.R. § 3.343(a), which governs the continuance of total disability ratings. The veteran was not given notice of 38 C.F.R. § 3.343(a) or its impact in any VCAA correspondence, statement of the case, supplemental statement of the case, or any other subsequent document furnished to him by the RO. The Board therefore finds that the RO has not developed or adjudicated this matter as a case involving a total rating termination governed by 38 C.F.R. § 3.343(a). Here, the only reference to "improvement" involving the veteran's thyroid disease is contained within the RO's letter of June 2004, advising him of the proposed reduction based on a review of medical records showing some improvement. Indeed, while the veteran's May 2004 and May 2005 VA examinations suggested that there had been some improvement in the veteran's thyroid disease since his April 1999 examination, in neither instance did the examiner offer an opinion as to whether the veteran's condition had materially improved since he was granted a total disability rating. The other evidence of record is similarly devoid of any discussion as to whether the veteran's improvement was material, or whether any such improvement was achieved under the ordinary conditions of life, such as while working or actively seeking work. Moreover, the RO failed to cite or include in any decisional document or notice letter a discussion of the pertinent provisions of 38 C.F.R. § 3.343(a). Accordingly, the Board finds that the RO's reduction action of October 2004 was invalid from the outset and must be set aside as not in accordance with law. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-82 (1992) (citing Browder v. Derwinski, 1 Vet. App. 204, 205 (1991)); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Additionally, the Board finds, with resolution of reasonable doubt in favor of the veteran, that the reduction in the veteran's rating from 100 percent to 30 percent was not sufficiently supported by the evidentiary record. The 100 percent evaluation was in effect for approximately 5 years and 11 months at the time the reduction was made effective in January 2005. As noted above, when an evaluation has been in effect for five years or more, it may not be reduced on any one examination, unless all the evidence of record suggests that sustained improvement has been shown. 38 C.F.R. § 3.344(a). In the instant case, the VA examination dated in May 2004 suggested some improvement in the veteran's thyroid disease relative to his April 1999 examination with respect to the size of his thyroid and his blood pressure. In all other respects, however, there was no demonstrated improvement in the veteran's thyroid disease relative to his April 1999 examination. Additionally, while the May 2005 VA examination indicated improvement with respect to the veteran's intolerance to cold weather and weight gain; these findings were contradicted by other evidence of record showing the veteran's ongoing complaints of intolerance to cold weather and weight gain. Indeed, in reducing the veteran's rating for thyroid disease, the RO did not appear to consider any opposing evidence provided by the veteran, most notably his complaints of ongoing weight gain, muscular pain, intolerance to cold weather, and pain in the extremities, and the laboratory results dated in April 2005 which showed abnormal TSH levels. Therefore, with all due respect for the RO's action, the Board finds that the veteran's May 2004 and May 2005 examinations, standing alone, were insufficient to demonstrate sustained improvement. The reduction to 30 percent based on these examinations was thus contrary to regulation. 38 C.F.R. § 3.344(a). In sum, the Board finds that the RO's rating reduction was in error under 38 C.F.R. § 3.343(a) and 38 C.F.R. § 3.344(a), and that restoration of the 100 percent disability evaluation for the veteran's thyroid disease is therefore warranted, effective from the date of reduction, January 1, 2005. The Board does not herein reach any other question presented by this appeal, including whether material improvement was achieved during the relevant time frame under the ordinary conditions of life. Nor does the Board intimate any opinion as to any such matter. Any subsequent action taken to reduce the veteran's rating must be in accord with the facts then presented and the governing legal criteria then in effect. ORDER Restoration of the 100 percent schedular evaluation for thyroid disease (hypothyroidism with clinical peripheral neuropathy) is granted from the date of the reduction, January 1, 2005. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs