Citation Nr: 1031291 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 07-04 283 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Whether a reduction for the service-connected follicular non- Hodgkin's lymphoma, from a 100 percent rating to a noncompensable (no percent) rating, effective on May 1, 2010, was proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a RO rating decision in February 2010, which reduced the rating from 100 percent to noncompensable (no percent) for the service-connected follicular non-Hodgkin's lymphoma, effective on May 1, 2010. During the course of his appeal, the Veteran was afforded a videoconference hearing held at the RO before the undersigned Veterans Law Judge in October 2007. An RO predetermination hearing was held before a Decision Review Officer (DRO) in January 2010. In May 2008, the Board remanded the case to the RO via the Appeals Management Center (AMC). The purpose of the remand was to obtain current VA and private treatment records and to schedule the Veteran for a VA examination. The Board finds there has been substantial compliance with its May 2008 remand directives. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Of preliminary importance, a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not also contemplate a claim for an increased rating. The issue involved is whether the reduction of the rating was proper. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). The Board has therefore recharacterized the issue for consideration to more accurately reflect the provisions of law under which the appeal must be considered. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue addressed in this decision was obtained. 2. In an August 2009 rating decision, the RO proposed to reduce the rating for the service-connected follicular non-Hodgkin's lymphoma from 100 percent to noncompensable; the Veteran was informed of the proposed action and afforded a period of 60 days to respond and had a predetermination hearing in January 2010. 3. In a February 2010 rating decision, the Veteran's rating for the service-connected follicular non-Hodgkin's lymphoma was formally reduced to noncompensable level based on competent evidence showing the absence of active disease, treatment or associated residuals, effective on May 1, 2010. CONCLUSION OF LAW The reduction of the 100 percent rating assigned for the service- connected follicular non-Hodgkin's lymphoma to a noncompensable (no percent) rating, effective on May 1, 2010 was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 3.951, 4.7, 4.117, including Diagnostic Code (DC) 7715 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION By way of procedural background, service connection for follicular non-Hodgkin's lymphoma was granted in a September 2005 rating decision when a 100 percent rating was assigned effective on May 23, 2005. The 100 percent rating was based on Diagnostic Code 7715 that provides that a 100 percent rating was to be assigned for the service-connected follicular non-Hodgkin's lymphoma based on active disease and during a treatment phase. The rating decision informed the Veteran that he was assigned an evaluation of 100 percent based on his having active disease for which he was receiving chemotherapy treatment and that six months following completion of treatment, his residual disability would be determined by findings from a VA examination conducted at that time. In a March 2006 rating action, the Veteran was notified of the proposed reduction in the 100 percent rating to noncompensable (no percent) based on the findings of a VA examination performed in March 2006. A June 2006 rating decision effectuated the reduction on September 1, 2006. In a May 2008 decision, the reduction was deemed improper and void ab initio based on a finding that the procedural requirements of the note associated with 38 C.F.R. § 4.117, DC 7715, requiring a VA examination be provided 6 months after the discontinuance of treatment for follicular non-Hodgkin's lymphoma to determine the nature and extent of the condition prior to any reduction of a rating assigned, were not met. As noted, the Veteran's claim was remanded for further development to include obtaining a VA examination to evaluate the nature and extent of his service-connected follicular non- Hodgkin's lymphoma. A June 2008 rating decision restored the Veteran's rating to 100 percent, effective from September 1, 2006, and an August 2009 rating action, issued in September 2009, again notified the Veteran of proposed a reduction in his disability rating. In October 2009, the Veteran requested a predetermination hearing before the RO that happened in January 2010. Finally, a February 2010 rating decision implemented the proposed reduction to noncompensable (0no percent), effective from May 1, 2010, based on the findings of a June 2009 VA examination and the private treatment records received in May 2009 and February 2010. Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction 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) (2009). 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. The beneficiary will also be informed that he or she will have an opportunity for a predetermination hearing. 38 C.F.R. § 3.105(i). The rating in this appeal was reduced on May 1, 2010. As the rating was in effect for less than five years, the provisions of 38 C.F.R. §§ 3.344(a),(b), which provide additional regulatory hurdles to rating reductions, do not apply. The provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. As noted, the Veteran was provided a rating action in August 2009 proposing to reduce his current evaluation for follicular non- Hodgkin's lymphoma to a noncompensable (0 percent) evaluation. A letter accompanying the rating action, dated in September 2009, informed the Veteran that he had 60 days to submit additional evidence and to request a predetermination hearing. Thus, the Veteran was given proper notice and time to respond before the rating for his service-connected follicular non-Hodgkin's lymphoma was reduced. 38 C.F.R. § 3.105. Additionally, as noted, the Veteran requested and received a predetermination hearing before the RO in January 2010. Therefore, the Board must now address whether the competent evidence warranted a reduction in the assigned rating. 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 considering whether actual improvement was demonstrated. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Here, the proposed reduction was made following a June 2009 VA medical examination and based private treatment records received in May 2009 and February 2010. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally, 38 C.F.R. § 4.1 (2009); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's reduced noncompensable (0 percent) rating was assigned under the provisions of 38 C.F.R. § 4.117 pertaining to non-Hodgkin's lymphoma. DC 7715 provides for a 100 percent disability rating with active disease or during a treatment phase. 38 C.F.R. § 4.117, DC 7715. The regulations further provide that the 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. 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. § 4.117, DC 7715, Note. The private treatment records, received in May 2009, generally reflect findings of a history of treatment for follicular non- Hodgkin's lymphoma in 2005 without any current residuals. Notably, a November 2006 private surgical pathology report shows findings of a nasopharyngeal mass, reactive lymphoid infiltrate, and numerous acute inflammatory cells and abscess, but no evidence of lymphoma. The private CT scans of the chest, abdomen and pelvis, dated from October 2005 to August 2008, show a history of lymphoma with suspect recurrence and show findings of stable CTs of the chest, abdomen and pelvis without acute abnormality, hydronephrosis, mass or adenopathy, or evidence of mediastinal, hilar or axillary adenopathy; and with a small focal area of scarring in the left upper lobe, a small focal lucency in the anterior end of the left third rib, right renal calculus unchanged in position, non- obstructing calculus upper pole right kidney, unchanged, diverticular disease in the sigmoid, and incidental note of a non-obstructing calculus in the right kidney along with prominent enlargement of the prostate and seminal vesicles. In June 2009, a VA examination was performed. Here, the examiner reviewed the Veteran's claims file, to include the notes of a private hematology oncologist, which showed on current examination no enlarged nodes with clear lungs and a normal complete blood count. On examination, the examiner observed clear lungs, normal conditioned orientation response, benign abdomen, and no lymphadenopathy, splenomegaly, hepatomegaly, jaundice, signs of bleeding or anemia, or evidence of superior vena cava syndrome. The examiner diagnosed the Veteran with non-Hodgkin's lymphoma, stage III, in remission with no active treatments since July 2005 or residual functional impairments. The examiner concluded that the Veteran's non-Hodgkin's lymphoma was not active and had not metastasized. Additionally, a January 2010 statement from the Veteran's private physician indicates a diagnosis of stage III, grade 3, follicular non-Hodgkin's lymphoma with six cycles of chemotherapy in 2005. The physician indicated that, at the present time, there was no evidence of recurrent disease and that he would undergo follow-up visits every 4 months and yearly CT scans because he was a definite risk for recurrence. The Board notes that in his October 2007 and January 2010 hearing testimony, the Veteran described current symptoms of reduction in stamina, and increased fatigue following his chemotherapy treatments in 2005. Further, he reported experiencing a crooked smile due to the removal of a tumor from his jaw on his left side, but it did not cause pain or numbness under the scar. The Veteran otherwise testified that he does not currently experience any residuals of his follicular non-Hodgkin's lymphoma. In summary, for these reasons, the Board finds that the symptomatology of the Veteran's service-connected follicular non- Hodgkin's lymphoma is consistent with a noncompensable (no percent) rating, that the evidence fails to show that he experiences any residual disability due to his follicular non- Hodgkin's lymphoma. Consequently, the Board finds that the RO's reduction from 100 to noncompensable (no percent), effective May 1, 2010 was proper and consistent with the evidence currently on file. In reaching this conclusion, the Board finds that the preponderance of the evidence is against assignment of a compensable rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Moreover, the Board finds that referral to the RO as outlined in 38 C.F.R. § 3.321(b)(1), for consideration of an extraschedular evaluation is not indicated. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER As the reduction of the rating from 100 percent to noncompensable (no percent) for the service-connected follicular non-Hodgkin's lymphoma, effective on May 1, 2010 was proper, the appeal to this extent is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs