Citation Nr: 1206662 Decision Date: 02/23/12 Archive Date: 03/09/12 DOCKET NO. 09-45 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether the reduction of the Veteran's disability evaluation for her menorrhagia from 30 percent to 10 percent, effective as of November 1, 2007, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from August 1995 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, reducing the Veteran's disability evaluation for her menorrhagia from 30 percent to 10 percent, effective as of November 1, 2007. This claim was previously remanded by the Board in February 2011 for further evidentiary development. The Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge in November 2010. A written transcript of this hearing has been prepared and incorporated into the evidence of record. FINDINGS OF FACT 1. In July 2001, the RO granted an initial disability evaluation of 30 percent for menorrhagia, effective as of March 15, 2001. 2. In August 2007, the RO reduced the Veteran's disability evaluation for her menorrhagia from 30 percent to 10 percent, effective as of November 1, 2007. 3. At the time of the reduction from 30 percent to 10 percent, the evidence demonstrated a material improvement in the Veteran's menorrhagia that was reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW Reduction of the rating for menorrhagia from 30 percent to 10 percent was proper. 38 U.S.C.A. §§1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.343, 3.344, 4.1-4.14, 4.116, Diagnostic Code 7629 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in October 2006 and May 2009 addressed all notice elements listed under 3.159(b)(1). The letters also informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. While all of this notice was not provided to the Veteran prior to the initial adjudication of her claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in August 2006 and April 2011, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been obtained and incorporated into the evidence of record. Significantly, neither the Veteran nor her representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its February 2011 remand directives. The Board notes that the Court has 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) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the Veteran for a VA examination and that she attended this examination. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Congress has provided that a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). The Court has consistently held that when an RO reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2011); Brown v. Brown , 5 Vet. App. at 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000); Brown, 5 Vet. App. at 420-21. The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in her ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2011). In general, 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011). However, the Court has specified a different burden of proof with respect to rating reduction claims. Because the issue in this case is whether the RO was justified in reducing the Veteran's 30 percent rating, rather than whether the Veteran was entitled to "reinstatement" of the 30 percent rating, the Board is required to establish, by a preponderance of evidence and in compliance with 38 C.F.R. § 3.344(a) , that a rating reduction was warranted. See Brown, 5 Vet. App. at 421; see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). For ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. See 38 C.F.R. § 3.344. Specifically, evidence is required demonstrating that the service-connected condition has materially improved and, with a reasonable certainty, will continue under the ordinary conditions of life. Id; see also Brown (Kevin) v. Brown, 5 Vet. App. 413, 420 (1993). The Court has also held that the regulatory provisions of 38 C.F.R. § 3.344(a), as quoted in part II.A.i., contains at least four specific requirements applicable to the rating reduction in the present case: (1) the Board must review "the entire record of examinations and the medical-industrial history ... to ascertain whether the recent examination is full and complete;" (2) "[e]xamination less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction;" (3) "[r]atings on account of diseases subject to temporary and episodic improvement, e.g., ... asthma ..., will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated;" (4) "[a]lthough material improvement in the physical or mental condition is clearly reflected, the rating agency will [consider] whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life." 38 C.F.R. § 3.344(a); see Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992); Schafrath v. Derwinski, 1 Vet. App. 589, 594-95 (1991). Facts and Analysis The Veteran was originally granted service connection for menorrhagia in a July 2001 rating decision. A disability evaluation of 30 percent was assigned under Diagnostic Code 7699-7629, effective as of March 15, 2001. In October 2006, the RO proposed to decrease the Veteran's disability evaluation to 10 percent, following an August 2006 VA examination. Her disability evaluation was subsequently decreased to 10 percent in an August 2007 rating decision, effective as of November 1, 2007. The Veteran submitted a timely notice of disagreement to this reduction in September 2007. However, it was confirmed by the RO in an October 2009 statement of the case. The Veteran appealed this decision to the Board in November 2009. Since the Veteran's assigned disability evaluation has been in effect for more than five years, the more stringent requirements laid out at 38 C.F.R. § 3.344 must be met before a rating reduction can be made. The Veteran was originally afforded a VA gynecological examination in May 2001. It was noted that the Veteran was having abnormal uterine bleeding that started two months earlier. The Veteran also reported feeling tired and fatigued all of the time, but there was no evidence of blood clots or cramps. The Veteran reported using approximately 48 pads in one-half week, and it was noted that her menstrual cycles lasted 7 days. The examiner diagnosed the Veteran with bleeding and menorrhagia following a cesarean (C)-section in 1999. It was noted that the Veteran would need to be on continuous hormone of her menses and nonsteroidal anti-inflammatory drugs (NSAIDs) continuously. According to a December 2002 VA outpatient treatment record, the Veteran was suffering from menorrhagia on Depo-Provera injections. A September 2004 record also indicates that the Veteran suffered from irregular menses. Specific symptomatology is not noted on either of these records. According to a May 2006 VA outpatient treatment record, the Veteran suffered from irregular menstrual periods. These occurred in 15 to 30 day cycles and lasted for three to four days each time. It was noted that the Veteran was being treated with Depo-Provera every three months. The Veteran was afforded an additional VA gynecological examination in August 2006. It was noted that the Veteran started having heavy periods that required multiple pads in 1998. The bleeding had improved since she started taking Depo-Provera, and it was noted that she had no periods at the present. The examiner indicated that the Veteran required Depo-Provera injections every three months. The Veteran's current symptomatology was described as an irregular menstrual cycle with light bleeding and mild menstrual cramps. The examiner diagnosed the Veteran with menorrhagia. The examiner indicated that this resulted in significant occupational effects as it decreased the Veteran's ability to do her job. Following the above examination, the RO proposed to reduce the Veteran's disability evaluation from 30 percent to 10 percent. Following this proposal, the Veteran requested and was afforded a personal hearing before a Decision Review Officer in June 2007. The Veteran testified that while she was taking shots to treat this condition, she was still having the same problems. However, she later clarified that the shots had helped "a little," and that she had not missed any work because of this condition with the shots. She reported that if she were to not receive the shots she would not be able to go to work. Following the Veteran's testimony, her disability evaluation was decreased to 10 percent in an August 2007 rating decision, effective as of November 1, 2007. In her September 2007 notice of disagreement, the Veteran reported that she was still having pain and bleeding and that her symptoms had never changed with the medicine. VA treatment records from October 2008 reflect that the Veteran requested that she be restarted on Depo-Provera shots. It was also noted that the Veteran continued to suffer from irregular menstrual periods with light periods lasting for four to five days. She was prescribed Depo-Provera, every three months. The Veteran was subsequently seen for Depo-Provera injections in January 2009, March 2009, and June 2009. However, none of these records discussed any of the symptomatology associated with the Veteran's menorrhagia. The Veteran was most recently afforded a VA examination in April 2011. The examiner noted that while on the Depo-Provera, the Veteran's menorrhagia had improved, although she would still have a menstrual period once a month lasting five days. The examiner indicated that the Veteran had menorrhagia that was controlled with Depo-Provera. It was noted that the Veteran reported that she would still have bleeding that was consistent with break through bleeding, but that there was little documentation concerning whether the bleeding pattern was improved over the course of treatment at VA. The examiner concluded that the Veteran's current level of symptomatology was of moderate severity. The examiner explained that the Veteran had been taking Depo-Provera injections for the last 11 to 12 years. The examiner noted that this medication usually stopped ovulation and vaginal bleeding, but that the Veteran still described having a menstrual cycle once a month. She reported that these cycles lasted five days and required the use of medium sized pads that she changed hourly during her cycle. The examiner explained that this was much improved over the amount of bleeding suffered by the Veteran prior to using the medication Depo-Provera. The examiner noted that using this medication did place the Veteran at risk of osteoporosis, so if she ever has to stop using the drug, she would again have very severe menstrual bleeding. The preponderance of the above evidence demonstrates that the reduction of the Veteran's benefits from 30 percent to 10 percent for her menorrhagia was proper. The Veteran is currently rated under Diagnostic Code 7629. Under this code, pelvic pain or heavy or irregular bleeding requiring continuous treatment for control is rated as 10 percent disabling. 38 C.F.R. § 4.116. A 30 percent disability evaluation is warranted when there is pelvic pain or heavy or irregular bleeding not controlled by treatment. Id. According to the Veteran's May 2001 VA examination, she was suffering from abnormal uterine bleeding requiring approximately 48 pads in one-half week. Subsequent treatment records reflect that the Veteran continued to suffer from irregular menses, which occurred in 15 to 30 day cycles. The Veteran was rated as 30 percent disabled during this time period. This evidence reflects that the Veteran's irregular periods were not controlled by treatment at this time, as her menstrual cycles were occurring as often as every 15 days. As such, a 30 percent disability evaluation was appropriate at this time. However, a review of the entire record of examinations and the medical-industrial history reveals that, since November 1, 2007, there has been a material improvement in the Veteran's menorrhagia that is reasonably certain to be maintained under the ordinary conditions of life. A 10 percent disability evaluation is warranted for heavy or irregular bleeding requiring continuous treatment for control. 38 C.F.R. § 4.116, Diagnostic Code 7629. The record reflects that the Veteran continues to treat her condition with Depo-Provera every three months. According to the August 2006 VA examination, the Veteran's bleeding had in fact improved since starting Depo-Provera. In fact, it was noted that she was suffering from no periods at the present time. Her overall symptomatology was described as light bleeding and mild menstrual cramps. Subsequent treatment records fail to reflect any complaints of excessive bleeding, but an October 2008 record did note light periods lasting for four to five days. Finally, upon VA examination in April 2011, the VA examiner concluded that the Veteran's menorrhagia was controlled with Depo-Provera, and that she now only suffered from moderate symptomatology associated with a monthly menstrual period lasting for five days. Therefore, a 10 percent disability evaluation is proper as of November 1, 2007, as the evidence demonstrates that the Veteran's menorrhagia is controlled but still requires constant medication. The evidence also demonstrates that it is reasonably certain that the Veteran's improvement will continue under the ordinary conditions of life. According to the April 2011 VA examiner, the Veteran's current condition was controlled with Depo-Provera, resulting in only moderate symptomatology. The examiner went further, however, and opined that with continued use of this medication, the Veteran should not experience any more vaginal bleeding. The examiner explained that this was due to the constant use of Depo-Provera, however, noting that if she were to stop her medication her heavy bleeding would be expected to return. As such, the evidence of record demonstrates that the Veteran's menorrhagia has been controlled by continuous use of Depo-Provera since November 1, 2007, and that it is reasonably certain that her condition will continue to improve as long as she stays on this medication. The Board recognizes that the Veteran believes she is entitled to a 30 percent disability evaluation for her menorrhagia as of November 1, 2007. According to the Veteran's September 2007 notice of disagreement, she was still having complications with pain and bleeding and her symptoms had never changed. As a lay person, the Veteran is certainly competent to offer this testimony. Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence). However, while the Veteran is certainly competent to offer the above assertion, the Board does not find it to be credible. During her June 2007 hearing, the Veteran conceded that the shots had helped a little, and that she had not missed any work since being on these shots. She indicated that she felt like she was dependent on these shots, but a 10 percent disability rating is meant to compensate a Veteran who requires "continuous treatment." Therefore, this testimony in fact supports a 10 percent disability evaluation. Furthermore, the August 2006 VA examination noted that the Veteran's bleeding had in fact improved, and treatment records from October 2008 described her periods as light, lasting only four to five days. As such, the Veteran's own statements and the medical evidence of record demonstrate that there has in fact been a change in her symptomatology since taking Depo-Provera. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2011). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms associated with her menorrhagia include irregular menses requiring continuous medication for control. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.116, Diagnostic Code 7629. This code also allows for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability. The evidence also does not suggest that the Veteran's condition has resulted in marked interference with employment, above and beyond that considered by a 10 percent disability evaluation, as the Veteran testified that she had not missed work over this condition since starting Depo-Provera. The Board is aware that the August 2006 VA examiner noted that this condition decreased the Veteran's ability to do her job. However, some degree of occupational impairment is inherent in a 10 percent disability evaluation. Also, the evidence demonstrates that she has never been hospitalized because of this disability. Therefore, referral for consideration of an extraschedular rating is not warranted. As a final matter, the Board is aware that a rating shall not be reduced based on an examination that is less full and complete than those on which payment was authorized. See 38 C.F.R. § 3.344(a). A review of the August 2006 and April 2011 VA examinations reveals that they were as complete, if not more so, than the May 2001 VA examination upon which payment was authorized. In May 2001, the Veteran's history and reported symptomatology was noted. The examiner also noted the medications required for the treatment of the Veteran's condition. These facts, and a medical opinion, were noted by the subsequent VA examiners. As such, the examination reports on which the reduction was based are at least as full and complete as the one upon which payment was authorized. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim that the reduction of her benefits from 30 percent to 10 percent was improper must be denied. ORDER The reduction of the Veteran's disability evaluation for her menorrhagia from 30 percent to 10 percent, effective as of November 1, 2007, was proper. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs