Citation Nr: 0813788 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-13 283A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Propriety of a reduction from 100 percent to non- compensable (zero percent) for the veteran's service- connected lung cancer. 2. Evaluation of service-connected lung cancer disability, currently rated as noncompensably (zero percent) disabling. 3. Entitlement to service connection for coronary artery disease (CAD) as secondary to service-connected lung cancer disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Van Stewart, Counsel INTRODUCTION The veteran had active military service from January 1952 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran's appeal originally included a claim for compensation for a scar due to lung cancer surgery. He was thereafter service connected for the scar, rated as non- compensably disabling. He appealed, seeking a 10 percent evaluation. The scar was then re-evaluated as 10 percent disabling in a rating decision dated August 2007. Because the 10 percent rating for the veteran's residual scar constitutes a full grant of the benefit sought on appeal, the scar issue is no longer on appeal. In his VA Form 9, Appeal to the Board of Veterans' Appeals, the veteran asserted that the RO was "not looking at the total picture of what this condition [lung cancer] has done to me physically and mentally." As this reference to a mental side-effect of his service-connected lung cancer and its treatment could be construed as an informal claim for service connection for a mental disorder, it is referred to the agency of original jurisdiction (AOJ) for appropriate action. During the course of a hearing before the undersigned Veterans Law Judge, the veteran indicated that eczema he had had on his back for some time had spread since his lung cancer was discovered and treated. He suggested that eczema was worse because of treatment for service-connected disability. As this appears to be an informal claim for service connection, it too is referred to the AOJ for appropriate action. (Consideration of evaluation of the veteran's lung cancer increased rating claim and his claim for service connection for CAD is deferred pending completion of the development sought in the remand that follows the decision below.) FINDINGS OF FACT 1. On February 8, 2005, the veteran was service connected for lung cancer, with an evaluation of 100 percent made effective from September 16, 2004. 2. On August 3, 2005, the veteran was notified that, based on the findings of a VA examination dated in June 2005, the RO was proposing to reduce evaluation of the veteran's service-connected lung cancer from 100 percent to zero percent disabling. 3. On August 1, 2006, the RO notified the veteran that evaluation of his service-connected lung cancer was reduced from 100 percent to zero percent disabling, effective from November 1, 2006. 4. From June 2005, the veteran's lung cancer disability caused no worse than mild ventilatory impairment with no other pulmonary dysfunction. CONCLUSION OF LAW Reduction in a rating of service-connected lung cancer from 100 percent to zero percent disabling was proper. 38 U.S.C.A. § 5112(b)(6) (West 2002); 38 C.F.R. §§ 3.105(e), 4.97, Diagnostic Code 6819 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, subsequent RO actions may "essentially cure[] the error in the timing of notice"). Here, the issue before the Board is a question of propriety of a reduction undertaken by the RO. This action was not prompted by a claim submitted by the veteran, but instead was undertaken as a result of a medical examination scheduled by the RO. When service connection for lung cancer and a 100 percent rating were awarded, the veteran was told in a February 2005 letter that an examination would be scheduled later to determine the severity of his newly service- connected disability. This was done in June 2005. The RO thereafter followed the procedures outlined in 38 C.F.R. § 3.105(e), which included notice requirements specifically relating to reductions of compensation awards, as will be discussed in greater detail below. Consequently, the notice requirements of the VCAA do not apply. The veteran underwent surgery in June 2004 for removal of a cancerous mass in his chest. The record shows that the upper lobe of the left lung was removed in the process. In a February 2005 rating decision, the veteran was granted service connection for lung cancer based on a presumption of exposure to ionizing radiation while in service, rated as 100 percent disabling effective September 16, 2004, the date of the veteran's claim. The veteran's lung cancer has been evaluated utilizing the rating criteria found at 38 C.F.R. § 4.97, Diagnostic Code 6819. Under Diagnostic Code 6819, all malignant neoplasms in any specified part of respiratory system, except for skin growths, are rated as 100 percent disabling. A Note to Diagnostic Code 6819 specifies that A rating of 100 percent 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. § 4.97, Diagnostic Code 6819. Section 3.105(e) states that, where a reduction in evaluation of a service- connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. After notification of the proposed reduction, the beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that 60-day period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which the 60-day period following the final rating action expires. 38 C.F.R. § 3.105(e). Here, the record shows the veteran underwent his lung surgery for removal of a cancerous tumor in June 2004, and that his chemo therapy was stopped after administration of the second cycle in September 2004. There being no evidence of local recurrence or metastasis of the cancer, the veteran underwent his mandatory VA examination in June 2005, more than six months after discontinuance of treatments for lung cancer. The examination included x-rays and pulmonary function tests (PFTs). Examination revealed a well-healed scar of the left upper thoracic segment of the back. (Service connection has been granted for the scar, which is not the subject of the present decision.) The lungs were clear to auscultation and percussion; no rales or rhonchi were present. There were diminished breath sounds in the left base. Examination of the heart revealed no abnormality. There was no kyphoscoliosis or pectus excavatum that interfered with the veteran's breathing. A chest x-ray showed elevation of the left diaphragm, but no masses, normal heart, and no pulmonary pathology. Results of the PFTs showed that the veteran's Forced Expiratory Volume in one second (FEV-1) was 81 percent; his FEV-1/Forced Vital Capacity (FVC) ratio was found to be 99 percent; his Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO(SB), or DLCO) was 115. The examiner who interpreted the PFTs noted that a reduction in total lung capacity suggested a mild restrictive ventilatory impairment. Spirometry was normal, and diffusing capacity for carbon monoxide was within normal limits. Based on this examination, the RO issued a rating decision in August 2005 proposing reduction of the evaluation of the veteran's lung cancer from 100 percent to zero percent. In the cover letter to the rating decision the veteran was informed that he had 60 days in which to submit medical or other evidence to show that the reduction should not be made, and that, if no additional evidence was received, the benefit payment would stop the first day of the third month following the RO's notice to him of the final decision. The veteran did not provide any additional evidence, and in a rating decision issued in August 2006, the RO reduced the evaluation of the veteran's lung cancer from 100 percent to zero percent, effective November 1, 2006. As regards the propriety of the procedures used to reduce evaluation of the veteran's lung cancer from 100 percent to zero percent, the Board finds no error. Review of the foregoing reveals that the veteran underwent the mandatory VA examination more than six months after discontinuance of his treatment for lung cancer. Thereafter a rating decision was issued in August 2005 announcing the proposed discontinuance of a compensable evaluation; the notification of the proposed reduction gave the veteran 60 days for the presentation of additional evidence. In August 2006, well after the expiration of the 60-day period, the veteran having submitted no additional evidence, the RO issued the rating decision discontinuing the compensable evaluation of the disability. The announced reduction was made effective November 1, 2006, the day following the end of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. In light of the foregoing, the Board finds that there was no procedural error in the reduction from 100 percent to zero percent for the veteran's service-connected lung cancer. Turning to the substantive question of the reduction of the veteran's lung cancer rating to zero percent, the Board notes that, in accordance with the Note to Diagnostic Code 6819, the veteran's lung cancer disability was to be rated based on any residuals found on his mandatory VA examination. (As noted in the Introduction, the veteran's residual scar was separately evaluated and is not on appeal. The scar residual is therefore not a part of this evaluation of residuals.) As noted, the June 2005 examiner found no heart abnormality. As regards the results of the PFTs, which evaluated what arguably could be the pulmonary residuals of the veteran's lung cancer disability (restrictive ventilatory impairment consistent with lung resection), the Board notes that PFT results may be evaluated in accordance with the criteria found at 38 C.F.R. § 4.97, Diagnostic Code 6840 (restrictive lung disease). Under these criteria, in order to warrant a compensable evaluation, at least one of the FEV-1, FEV-1- 1/FVC, or DLCO(SB) values must be less than 80 percent of predicted values. None of the results of the June 2005 PFT was less than 80 percent, and a compensable evaluation was thus not warranted. In sum, the Board finds that the reduction of evaluation of the veteran's service-connected lung cancer from 100 percent to zero percent disabling was proper, and the veteran's appeal of this issue is therefore denied. ORDER The reduction from 100 percent to non-compensable (zero percent) for service-connected lung cancer was proper; the appeal of this issue is denied. REMAND The veteran has claimed during the course of his appeal, including at his hearing, that he is entitled to compensation for residuals of his lung cancer and its resulting surgery that resulted in loss of the upper lobe of his left lung. Notwithstanding the foregoing order that the RO's reduction of the lung cancer disability rating from 100 percent to non- compensable was proper, the Board finds that, because of the veteran's continuing averments, and because the RO adjudicated the question of entitlement to a rating higher than zero percent in its de novo review undertaken in an April 2007 statement of the case, there remains on appeal a claim for an increased rating for the veteran's lung cancer disability. As regards this increased rating claim, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently articulated VA's duty to assist in the context of the VCAA. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court determined that, for an increased compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Id. at 43. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit or ask VA to obtain that are relevant to establishing entitlement to increased compensation. Id. Review of the record discloses that the veteran has not been adequately notified in accordance with the requirements set out by the Court in Vazquez-Flores. The Board will therefore remand this issue in order to ensure that the veteran receives the due process to which he is entitled. In the course of his appeal, the veteran claimed that he has coronary artery disease (CAD) that is secondary to his service-connected lung cancer disability. This claim was denied in a rating decision issued in August 2007. The veteran filed a notice of disagreement (NOD), which was received three days after the instant appeal was certified to the Board. By filing an NOD, the veteran has initiated appellate review of the claim. The next step in the appellate process is for the AOJ to issue to the veteran a SOC summarizing the evidence relevant to this issue, the applicable legal authority, and the reasons that the AOJ relied upon in making its determination. See 38 C.F.R. § 19.29 (2007); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), citing Holland v Gober, 10 Vet. App. 433, 436 (1997). Although the claims file was either on its way to or at the Board when the veteran filed his NOD, the Court has nevertheless required that the Board remand, rather than refer, the case to the AOJ in such situations for issuance of a SOC. Id. Consequently, the claim for service connection for coronary artery disease must be remanded to the AOJ for the issuance of a SOC. The remanding of this service connection issue must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); Roy v. Brown, 5 Vet. App. 554 (1993). The AOJ should return this issue to the Board only if the veteran perfects his appeal in accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, the veteran's case is REMANDED to the AOJ for the following actions: 1. The AOJ should notify the claimant that, to substantiate a claim for an increased rating for his lung cancer disability, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life should be submitted. Further, because the Diagnostic Code under which the claimant may be rated for his pulmonary function contain criteria necessary for entitlement to a higher disability rating that could be unsatisfied even by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life, the veteran must be provided with at least general notice of the rating criteria. In this instance, the notice should include information about the rating criteria used to rate the veteran's pulmonary function as related to his lung cancer disability and what is required to obtain a higher rating. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores at 43. 2. A SOC should be issued addressing the claim for secondary service connection for coronary artery disease. The veteran and his representative should be given an opportunity to appeal. The veteran and his representative are hereby reminded that appellate consideration of this claim may be obtained only if a timely appeal is perfected after a SOC is issued. The coronary artery disease service connection issue should be returned to the Board only if a timely appeal is filed. 3. After undertaking any other development deemed appropriate, the AOJ should consider the increased rating issue on appeal in light of all information or evidence received. If any benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. After expiration of any applicable period allowed for response, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the AOJ. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the AOJ. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs