Citation Nr: 1035711 Decision Date: 09/21/10 Archive Date: 09/28/10 DOCKET NO. 08-33 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to restoration of a 10 percent rating for recurrent pneumonia. 2. Entitlement to service connection for diverticulitis. 3. Entitlement to service connection for irritable bowel syndrome. 4. Entitlement to service connection for hemorrhoids. 5. Entitlement to a compensable disability rating for hypertension. 6. Entitlement to a compensable disability rating for left ventricular hypertrophy with diastolic dysfunction. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and Craig N. Bash, M.D. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2007 and March 2008 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In February 2009, the Veteran testified at a video hearing before the undersigned with his witness, Dr. Bash, testifying live at the Board. In May 2009, the Board remanded for further development. Specifically as to the claims decided herein, the Board instructed the RO to obtain the transcript of the January 30, 2008, personal hearing at the RO and associate it with the claims folder. An informal conference report dated January 30, 2008, has been associated with the claims folder. In the April 2010 supplemental statement of the case, it was noted that there was no hearing transcript for the RO hearing. Thus, there is compliance with the Board's remand instructions as they pertain to the issue decided herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The issues of service connection for diverticulitis, irritable bowel syndrome, and hemorrhoids are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). Referred Issue As noted in the prior remand, the Veteran at his February 2009 hearing raised the issue of entitlement to an increased rating for pneumonia. This issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. By a January 2002 rating decision, the RO granted a 10 percent disability rating for recurrent pneumonia, effective April 17, 200 1. 2. Following a July 2005 VA examination, in a December 2007 rating decision the RO proposed to reduce the rating for recurrent pneumonia from 10 percent to a noncompensable evaluation. 3. By a letter dated in December 2007, the RO notified the Veteran that it proposed to reduce the 10 percent evaluation for recurrent pneumonia, and enclosed the December 2007 rating decision discussing the medical evidence reflecting that his respiratory symptoms were due to his chronic obstructive pulmonary disease and was not related to his history of pneumonia. 4. By a rating decision dated in March 2008, the RO implemented a reduction to a noncompensable evaluation for recurrent pneumonia, effective June 1, 2008. Notice of the reduction was mailed to the Veteran in March 2008. 5. A comparison of the medical evidence on which the 10 percent disability rating was awarded with the evidence received in connection with the rating reduction and the post-reduction medical evidence, does not reflect an improvement in the service- connected recurrent pneumonia. CONCLUSION OF LAW The criteria for restoration of a 10 percent evaluation for recurrent pneumonia have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Code 6602 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in September 2007 and June 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Those letters also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated in a May 2010 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to the issue decided herein in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As to the claim for recurrent pneumonia, inasmuch as that case involves a rating reduction rather than a rating increase, there are specific notice requirements, found in 38 C.F.R. § 3.105(e)- (i), which are applicable to reductions in ratings. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating 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 expires. 38 C.F.R. § 3.105 (2009). As discussed below, the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. Restoration Claim The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In this case, the requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 10 to a noncompensable evaluation for recurrent pneumonia, were properly carried out by the RO. On December 18, 2007, the RO notified the Veteran of a proposed rating reduction (issued in a December 2007 rating decision), and the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced. The RO further notified the Veteran that he could request a personal hearing, which he did not do. The RO took final action to reduce the disability rating in a March 2008 rating decision, in which the rating was reduced from 10 percent to a noncompensable evaluation, effective June 1, 2008. The RO informed the Veteran of this decision by a letter dated March 17, 2008. This action was more than 60 days from the time of notice of the proposed action. Thus the RO properly carried out the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 10 percent to a noncompensable evaluation for recurrent pneumonia. The Veteran does not contend otherwise. Under 38 C.F.R. § 3.344(c), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. Here, the 10 percent evaluation was granted in a January 2002 rating decision, effective April 17, 2001, and then reduced to a noncompensable evaluation in a March 2008 rating decision, effective June 1, 2008. Thus, the 10 percent rating had been in effect for the requisite five-year period of time as set forth at 38 C.F.R. § 3.344(a) and (b). The requirements for a reduction set forth at 38 C.F.R. § 3.344(a) and (b), require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). The regulations provide that, ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination. There is an exception for those cases where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a). For disabilities that have continued for five years or more, such as the one at issue here, the critical issue is whether material improvement in a Veteran's disability was demonstrated in order to warrant a reduction in such compensation benefits. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 417-18. The applicable legal standard summarized, in Sorakubo v. Principi, 16 Vet. App. 120 (2002), requires that, in the case of a rating reduction, the record must establish that a rating reduction is warranted by a preponderance of the evidence and that the reduction was in compliance with 38 C.F.R. § 3.344. See Brown, 5 Vet. App. at 421. The Board also notes that 38 C.F.R. § 3.344(c) does provide that, if an adequate examination discloses improvement in the condition, such findings will warrant a reduction in the disability evaluation. However, the examination itself is not the only evidence to consider. In Brown, the United States Court of Appeals for Veterans Claims (Court) interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the disability, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that, in any rating reduction case, not only must it be determined that improvement in the disability has occurred, but also that improvement reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. In considering the propriety of a reduction in this case, a review of the rules for establishing disability ratings is appropriate. Disability ratings are determined by comparing the Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's recurrent pneumonia. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, if an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the period from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's statements describing the symptoms of his service- connected recurrent pneumonia are deemed competent evidence to the extent of his perception of the symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. In evaluating whether a reduction was warranted in the disability rating assigned for the Veteran's service-connected recurrent pneumonia, the RO considered the diagnostic criteria most analogous to recurrent pneumonia, chronic pleural effusion or fibrosis (38 C.F.R. § 4.97, Diagnostic Code 6845 of the Rating Schedule). That code provides the following rating criteria: A 100 percent evaluation is assigned for findings that show Forced Expiratory Volume in one second (FEV-1) less than 40 percent of predicted value, or; the ratio of FEV-1/Forced Vital Capacity (FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. A 60 percent evaluation is assigned for FEV-1 of 40- to 55- percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 30 percent evaluation is assigned for FEV-1 of 56- to 70- percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 10 percent evaluation is assigned for FEV-1 of 71- to 80- percent predicted, or; FEV-1/FVC of 71 to 80 percent or; DLCO (SB) 66- to 80-percent predicted. 38 C.F.R. § 4.97, Diagnostic Codes 6840-6845. 38 C.F.R. § 4.97, Diagnostic Code 6602. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. The critical evidence considered by the RO in January 2002 in granting a 10 percent disability rating is contained in the report of a September 2001 VA examination. Results of a pulmonary function test at that time included DLCO score of 72 percent of the predicted value. This became the basis of the RO's January 2002 rating decision to increase the disability rating from noncompensable to 10 percent, effective from April 17, 2001. In addition to finding that there was no evidence verifying a case of pneumonia since 1980, the RO's evidentiary basis for the December 2007 RO rating decision proposing to reduce the disability assigned for recurrent pneumonia from 10 to a noncompensable evaluation is contained in a July 2005 VA examination. The examination report noted that decreased pulmonary function was due to chronic obstructive pulmonary disease (COPD) and COPD was due to his years of smoking and history of allergic responses and not due to his previous history of pneumonia; his smoking complicated his restrictive airway disease and COPD. On evaluation, the FEV-1 was 80 percent predicted, FEV-1/FVC was 84 percent, and DLCO (SB) was 47.8 percent predicted. An impression of mild restrictive disease with moderately reduced diffusion capacity was noted. PFTs in November 2005 showed FEV-1 was 73.4 percent predicted, FEV-1/FVC was 85 percent, and DLCO (SB) was 57.7 percent predicted. Also in November 2005, FEV-1 was 66.1 percent predicted, FEV-1/FVC was 82 percent, and DLCO (SB) was 48.4 percent predicted. In October 2007, FEV-1 was 66.1 percent predicted, FEV-1/FVC was 82 percent, and DLCO (SB) was 48.4 percent predicted. An impression of mild restrictive respiratory disease with moderately reduced diffusion capacity was noted. PFTs in August 2009 showed FEV-1 was 54 percent predicted, FEV- 1/FVC was 76 percent, and DLCO (SB) was 46 percent predicted Because the evidence shows that there has been no actual improvement in the Veteran's service connected recurrent pneumonia since June 2008, the Board finds that restoration of the 10 percent rating for this disability is warranted. Brown, supra. The Board notes the RO's finding that the Veteran's present lung disability was not due to a service-connected disability; however, reduction of his already established disability evaluation is not appropriate as there is no actual improvement. The Board is mindful of the debate as to whether the Veteran's current respiratory symptoms are due to his service-connected disability. In a September 2005 addendum to the July 2005 VA examination, the examiners noted that the Veteran's respiratory disability was due to his years of smoking. In contrast, an August 2007 letter from T. Martin, M.D. noted that the Veteran's in-service treatment for pneumonia contributed to his ongoing problems with his lungs. A February 2008 VA medical opinion noted that the Veteran's current restrictive respiratory lung disease evidenced on PFTs was less likely as not caused by or a result of service-connected recurrent pneumonia. The examiner opined that the Veteran's lung disability was at least as likely as not caused by smoking. However, an October 2007 report from Dr. Bash noted that the Veteran's lung problems were caused his in-service pneumonia. A February 2009 report from Dr. Bash noted that the Veteran had restrictive lung disease. In any case, since service-connection has been established, the only appropriate way to reduce the Veteran's evaluation is by demonstrating material improvement of his symptoms, which has not been done in this case as evidenced by his PFT's. Since the record does not establish that a rating reduction is warranted by a preponderance of the evidence, the Board finds that restoration of the 10 percent disability evaluation is warranted. ORDER The 10 percent rating for recurrent pneumonia is restored, effective the date of the prior reduction, June 1, 2008. The Appeal is granted. REMAND In its May 2009 remand, the Board instructed the RO to provide a medical opinion as to the etiology of the Veteran's service connection claim for diverticulitis and irritable bowel syndrome. The Board specifically indicated that in rendering the requested opinions the VA examiner "should comment on the February 2009 letter and testimony provided by Dr. Bash regarding the origins of the Veteran's diverticulitis." In an October 2009 examination report and a November 2009 addendum report, a VA examiner addressed the likelihood that the Veteran's diverticulitis and irritable bowel syndrome were related to service. However, the examiner did not address Dr. Bash's testimony as requested by the Board Remand. The Court has held that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the October 2009/November 2009 examiner should address Dr. Bash's testimony regarding the origins of the Veteran's diverticulitis and irritable bowel syndrome. Additionally, the Board notes that the Veteran has not been afforded an examination to determine the etiology of his current hemorrhoids. In this respect, review of the record shows that the Veteran has a current diagnosis for hemorrhoids and service treatment records note that the Veteran was seen for multiple complaints related to gastrointestinal problems. Notably, a September 1973 record noted that rectal examination results included tenderness and nodules, but the examination report at service discharge noted a normal digital rectal examination. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2009); Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the Veteran has not yet been afforded a VA examination in conjunction with his claim for service connection for hemorrhoids. As there is evidence of in- service treatment for rectal problems and the record reflects post-service treatment for hemorrhoids, the Board finds that a remand for an examination and opinion is required in order to fairly address the merits of his claim. 38 C.F.R. § 3.159(c)(2) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lastly, the AMC issued a September 2009 rating decision implementing the Board's May 2009 decision/remand. The RO subsequently submitted several statements expressing disagreement with the initial disability evaluations assigned for his service connected hypertension and left ventricular hypertrophy with diastolic dysfunction. There is no record that the originating agency has provided the Veteran with a Statement of the Case in response to the Veteran's timely notices of disagreement with the September 2009 rating decision. Because the notices of disagreement placed the issues in appellate status, the matters must be remanded for the originating agency to issue a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 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) (2009). Expedited handling is requested.) 1. The RO or the AMC should issue to the Veteran and his representative an SOC on the issues of entitlement to compensable disability evaluations for his service connected hypertension and service connected left ventricular hypertrophy with diastolic dysfunction. They should be informed of the requirements to perfect an appeal with respect to this issue. If the Veteran perfects an appeal with respect to these issues, the RO or the AMC should ensure that any indicated development is completed before the issues are certified for appellate consideration. 2. The claims folder, including a copy of this Remand and the May 2009 Remand, should be provided to the examiner who provided the October 2009 and November 2009 opinions. He must add an addendum to his earlier reports by commenting on the February 2009 letter and testimony provided by Dr. Bash regarding the origins of the Veteran's diverticulitis. If the examiner that conducted the October 2009 examination is not available, the RO should forward the file to another examiner who can provide the requested opinion. The examiner should ensure that the following questions are answered: a. Is it at least as likely as not (i.e., 50 percent or greater degree of probability) that the Veteran's diverticulitis and/or its residuals began during service or are causally linked to any incident of service? b. Is it at least as likely as not (i.e., 50 percent or greater degree of probability) that the Veteran's irritable bowel syndrome and/or its residuals began during service or are causally linked to any incident of service? In providing answers to the above questions, the examiner should comment on the February 2009 letter and testimony provided by Dr. Bash regarding the origins of the Veteran's diverticulitis. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is requested to provide a rationale for any opinion expressed. 3. The RO should schedule the Veteran for a VA examination for the purpose of ascertaining the etiology of his hemorrhoids. The claims file must be reviewed by the examiner and the examination report should note that review. The examiner should provide the rationale for all opinions provided, with citation to relevant medical findings. The examiner should specifically opine as to the following: Is it at least as likely as not (50 percent probability or greater) that any current hemorrhoids first manifested during the Veteran's active service, or is otherwise related to the Veteran's active service? In this regard, the examiner should consider the September 1973 service treatment record showing tenderness and nodule on the rectal wall. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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. 2009). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs