Citation Nr: 0813846 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-17 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the reduction in the rating for elevated fever from 10 to 0 percent, effective September 1, 2002, was appropriate. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran had active military service from June 1986 to May 1991. This case comes to the Board of Veterans' Appeals (Board) from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee - which, prospectively as of September 1, 2002, reduced from 10 percent to noncompensable (i.e., 0 percent) the disability rating for the veteran's service-connected elevated fever. He wants the 10 percent rating reinstated. In November 2004, to support his claim, the veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ) of the Board (also referred to as a "travel Board" hearing). Then in February 2005 the Board remanded this case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. Thereafter, in a January 2006 letter, the Board informed the veteran that the VLJ who had conducted the November 2004 hearing was no longer employed by the Board, and thus, the veteran had the option of having another hearing to be conducted by the VLJ who will ultimately decide his appeal. See 38 C.F.R. § 20.707 (2007). He elected to have another hearing. So the Board again remanded this case in March 2006, to schedule the veteran for another travel Board hearing. However, although a hearing was scheduled for November 2006, he cancelled it in advance of the hearing date, stating he did not want to reschedule the hearing before further consideration of his claim. See 38 C.F.R. § 20.704(e). The Board remanded this case again in February 2007 to obtain VA outpatient treatment records dated since May 2002 and any private treatment records. The AMC completed this additional development, continued to deny the claim, and returned the case to the Board for further appellate consideration. FINDINGS OF FACT 1. In a November 2001 letter, the veteran was given due process notice of the proposed reduction in the rating for his elevated fever; the letter also apprised him of his right to submit additional evidence to contest the reduction and request a pre-determination hearing. 2. In the June 2002 decision at issue, the RO reduced the rating for the veteran's elevated fever from 10 to 0 percent, prospectively effective as of September 1, 2002. The 10 percent rating had been in effect for less than five years at the time of the reduction. 3. At the time of that June 2002 rating decision, there was sufficient evidence of sustained and material improvement in the veteran's elevated fever under the ordinary conditions of life. CONCLUSION OF LAW The criteria were met for a reduction of the veteran's disability rating for his elevated fever from 10 to 0 percent, prospectively effective as of September 1, 2002. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344(c), 4.88b, Diagnostic Code (DC) 6354 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters from the AMC in February 2005 and in February and April 2007 (1) informed the veteran of the information and evidence not of record that was necessary to substantiate his claim; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claim, or something to the effect that he should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice 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: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The RO complied with the requirements in Dingess, following two remands, when it sent a VCAA notice letter in March 2006 discussing the disability rating and effective date elements of the claim and then went back and readjudicated the claim in the December 2007 supplemental statement of the case (SSOC). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claim; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claim under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO obtained all pertinent medical records identified by the veteran and his representative. In addition, VA furnished the veteran compensation examinations to determine the severity of his elevated fever. See Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. II. Whether it was Appropriate to Reduce the Rating for the Veteran's Elevated Fever from 10 to 0 Percent A reduction in or discontinuance of compensation requires a proposed action with a recitation of all material facts and reasons for the reduction, notice to the veteran of that proposed action, and an opportunity for the veteran to present additional evidence and be heard, including at a hearing. 38 C.F.R. § 3.105(e). If no additional evidence is received within the prescribed time period to contest the reduction, the proposed action may be accomplished. Id. The Board finds that the RO satisfied these procedural due process requirements. Specifically, in November 2001, the RO proposed a reduction in the rating for the veteran's elevated fever from 10 to 0 percent. He was contacted at his address of record in a November 2001 letter and given 60 days to present additional evidence showing the reduction was unwarranted. The RO also gave him the opportunity for a hearing on this issue. In response, the veteran requested that the RO reconsider his reduction and review his VA outpatient treatment records. During the allotted sixty-days, the RO obtained his outpatient treatment records from the local VA medical center (VAMC) dated from May 1999 to May 2002 and his private treatment records from Dr. P.B. dated from December 1997 to December 1999. The RO considered this new evidence but found it did not indicate the veteran met the requirements to maintain his 10 percent rating. After the June 2002 decision indicated the reduction would be prospectively effective as of September 1, 2002, the veteran filed a timely notice of disagreement (NOD) in June 2002, in the interim, and once the reduction took effect this appeal ensued. Thus, the RO carried out the reduction in accordance with the procedural requirements of 38 C.F.R. § 3.105(e). The requirements for a reduction in the evaluation for disabilities in effect for five years or more are set forth at 38 C.F.R. § 3.344, which require that only evidence of sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examinations, can justify a reduction. If there is any doubt, the rating in effect will be continued. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). This regulation also provides that, with respect to other disabilities that are likely to improve, namely those in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. See 38 C.F.R. § 3.344(c). VA measures the duration of a rating from the effective date assigned to a rating until the effective date of the actual reduction. See Brown, supra. Here, the effective date of the prior 10 percent rating was April 20, 1999. And, as mentioned, the effective date of the reduction to 0 percent was September 1, 2002. Thus, 38 C.F.R. § 3.344(a) and (b) are not applicable in this instance as the 10 percent rating was in effect for less than five years. Even so, the Board still must determine that improvement in the veteran's disability had actually occurred and that such improvement actually reflected an improvement in his 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, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Further, in any rating reduction case VA must ascertain, based upon a review of the entire recorded history of the condition, whether a preponderance of the evidence reflects an actual change in the disability and whether the examination reports reflecting such a change are based upon thorough examinations. See Brown at 420-421. Records show the veteran had a full and complete VA general examination in October 2001 to determine whether there was indeed material improvement in his elevated fever prior to reducing the rating for it, and he was more recently reexamined in July 2005 - three years after the reduction took effect, to ensure this improvement was being sustained or maintained under the ordinary conditions of life. The Board emphasizes that a rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In the former situation, VA has the burden of establishing the disability has improved, whereas in the latter situation it is the veteran's responsibility to show the disability has worsened. 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). Service connection was established on a presumptive basis because the veteran's elevated fever (claimed as "flu like symptoms") was manifested to a degree of at least 10 percent prior to December 16, 2006. Because of his Persian Gulf War service, his disability was partly rated as Chronic Fatigue Syndrome (CFS) under 38 C.F.R. § 4.88b, Diagnostic Code (DC) 6354 (2007). According to DC 6354, VA assigns a 10 percent evaluation when debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms wax and wane but result in periods of incapacitation of at least one but less than two weeks total per year, or require symptoms to be controlled with continuous medication. DC 6354 notes that for the purposes of evaluating CFS, the condition will only be considered incapacitating when it requires bed rest and treatment by a physician. Id. In every instance where the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. As mentioned, records show the RO granted service connection for elevated fever in a September 1999 decision and assigned a 10 percent rating retroactively effective from April 20, 1999, the date of receipt of the veteran's claim. And, as also mentioned, in November 2001 the RO proposed to reduce this rating from 10 to 0 percent based on then recent medical evidence showing his condition had improved. The RO noted that a medical examiner had found no evidence showing periods of incapacitation or symptoms controlled by continuous medication. The RO reduced the rating to 0 percent in the June 2002 decision at issue. The veteran wants the 10 percent rating reinstated (restored). As noted, the November 2001 rating decision cited the results of the veteran's October 2001 VA general examination as grounds for reducing his rating. During that examination, he had reported experiencing two to three episodes of fever in the Persian Gulf. He had also complained of muscle and joint aches, wheezing, and chills lasting a few days. He indicated these episodes initially occurred every one to one and a half months, but that they now occur every three to four months. The examiner diagnosed episodes of fever, then explaining that the veteran did not bring in any documentation of fever or log of temperatures as previously instructed. The examiner pointed out the progress notes showed the veteran had a temperature of 98.5 degrees Fahrenheit at the Dorn VAMC in Columbia, South Carolina, and of 98.2 degrees Fahrenheit in May 1999 - indicating that his temperature was normal. In addition, a VA outpatient report from April 1999 indicates the veteran had elevated fevers every six to eight months that started out as joint pains in his back and neck. He also noted that he has missed about two to three days from work every time he had an episode. Based on this history, he would miss anywhere from 2 to 6 days of work per year due to this condition. However, the record does not show any medical evidence of a fever condition that caused him to miss any time at work. Further, this report also shows he had a temperature of 98.2 degrees Fahrenheit. The examiner diagnosed weakness with reported periods of hypotension and periodic febrile illnesses. A VA outpatient report in December 1999 specifically notes the veteran denied any fevers or chills. Further, during his October 2001 VA examination, he again denied experiencing any fever, chills, malaise, night sweats, lymphadenopathy, weight loss or gain for years. He also denied experiencing any joint pain, swelling, stiffness, cramping, weakness and myalgias. He reported recurring flu-like illnesses every 3 to 4 months. Just prior to the reduction in his rating, a VA outpatient report from May 2002 indicated the veteran had a temperature of 98.5 degrees Fahrenheit. The RO provided another compensation examination in July 2005, three years after the reduction in the veteran's elevated fever disability rating. Prior to this VA compensation examination, the designated examiner reviewed the veteran's claims file before physically evaluating him for his pertinent medical and other history. During the examination, the veteran reported that he thought he had exposure to serine or cycloserine during service in the Gulf War. He also reported experiencing cyclical episodes of fever, initially occurring every two to three months, but now every four to six months. He indicated these episodes start off with aching between his shoulder blades that last for two or three days and then he aches in his fingers, knees, back, elbows, shoulders and thighs. During this time, he will develop a fever lasting one to one and a half days that goes to 102 or 103 degrees Fahrenheit. He mentioned experiencing muscle ache, but no weakness. He indicated that he works as a service technician for beverage machines. He also denied any current excess fatigue after exercise, headaches, neuropsychological symptoms or sleep disturbances, but he did indicate joint pain. The examiner concluded there is no objective evidence the veteran has chronic fatigue syndrome. In this regard, the examiner indicated he had requested the veteran during his previous examination to keep a log of his fevers, but that he did not provide any documentation of them. Moreover, the examiner noted there was no medical evidence of any fever or prominent fatigue since the rating reduction. The Board also points out that the remand in February 2007 requested that the AMC obtain all relevant VA outpatient treatment records dated since May 2002, as well as any private treatment records. Following the Board's remand, the AMC received supplemental VA outpatient treatment records dated from May 2002 to July 2005. However, these additional records also make no reference to any complaint, treatment or diagnosis of an elevated fever. Indeed, the only reference was a May 2002 VA record showing the veteran had a temperature of 99 degrees Fahrenheit (representing, at most, only a very slightly elevated temperature). So the results of the October 2001 and July 2005 VA examinations justify reducing the disability rating for the veteran's elevated fever to 0 percent. Findings from these evaluations all show his elevated fever symptoms have improved and remained stable. That is to say, there is sufficient evidence of sustained and material improvement that will be maintained under the ordinary conditions of life. The other medical evidence of record at the time of the June 2002 reduction also shows sustained and material improvement of the elevated fever. For example, an October 2001 VA outpatient report indicated the veteran denied experiencing any fever, chills, malaise, night sweats, lymphadenopathy, weight loss or gain. In sum, the Board finds that the preponderance of the evidence shows the veteran's elevated fever improved and no longer warranted the 10 percent rating as of September 1, 2002. The lower 0 percent rating appropriately reflects the present state of his elevated fever disability, so this is the rating that must be assigned. 38 C.F.R. § 4.7. And since, for these reasons and bases, the preponderance of the evidence is against his claim for restoration of his prior rating, the benefit-of-the-doubt doctrine is inapplicable. See 38 C.F.R. § 4.3. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The veteran's claim for restoration of his 10 percent rating for elevated fever is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs