Citation Nr: 1305396 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 09-36 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether the reduction of right upper lung lobectomy status post lung cancer with chronic obstructive pulmonary disease (lung disability) from 100 percent to 30 percent effective June 1, 2008 was proper. 2. Evaluation of service-connected residuals of lung cancer, rated as 30 percent disabling from June 1, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1955 to December 1957 and from February 1958 to June 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the January 2013 Informal Hearing Presentation (IHP), the Veteran's representative, for some reason, raised a claim for a total disability rating based on individual unemployability (TDIU), notwithstanding the fact that the Veteran is currently at 100% for his service connected disabilities. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim 'identify the benefit sought' has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A TDIU claim is not raised unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). A June 1999 opinion of VA's General Counsel (GC) held that receipt of a 100 percent schedular evaluation for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of that claim. See VA O.G.C. Prec. Op. No. 6-99; Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In 2008, however, the Court issued Bradley v. Peake, 22 Vet. App. 280 (2008), which is contrary to GC's previously noted precedent opinion, since withdrawn in response to Bradley. According to the Court, although no additional disability compensation may be paid when a total schedular disability evaluation is already in effect, a separate award of a TDIU rating predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU even where a 100 percent schedular evaluation is already in effect. However, in this case, the Veteran is not only in receipt of a combined 100 percent schedular evaluation for multiple disabilities, he is also in receipt of SMC at the (s) rate. Accordingly, at this time, the Board need not address the claim for a TDIU rating. The issues of whether new and material evidence has been submitted to reopen service connection for bladder cancer and service connection for bilateral pes planus (it appears) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ) (this is unclear). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In this regard, as noted above, in light of the fact that the Veteran is at a 100% rating at the (s) rate, he may wish to withdraw all claims (in writing, if any) and focus on his health. In any event these issues are not before the Board at this time. The Board has reviewed the Veteran's physical claims file and file on the Virtual VA system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In November 2007, the RO notified the Veteran of a rating decision proposing to reduce the evaluation for service-connected lung disability, from a 100 percent schedular rating to 30 percent based on the absence of recent malignancy. 2. A rating decision dated in March 2008 reduced the 100 percent schedular rating assigned for service-connected lung disability to 30 percent, effective June 1, 2008. 3. At the time of the reduction, a 100 percent rating for the Veteran's disability had been in effect since November 8, 2006, less than five years. 4. At the time of the reduction, there was no active malignancy; since lung surgery in December 2006, there has been no evidence of malignant neoplasms, local recurrence, or metastasis. 5. From June 1, 2008, the Veteran's service-connected lung disability has manifested pre-bronchodilator result of FEV-1 of 46 percent and a post bronchodilator result of FEV-1 of 48 percent predicted and maximum oxygen consumption of 16.1 and 18.55 ml/kg/min. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent disability rating for lung disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.105(e), 4.97, Diagnostic Code 6819 (2012). 2. For the period from June 1, 2008, resolving all reasonable doubt in the Veteran's favor, the Veteran's service-connected lung disability is 60 percent disabling. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.105(e), 4.97, Diagnostic Codes 6819, 6844 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). In the present case, the Veteran's 100 percent rating had been in effect for less than a five-year period at the time the Veteran's disability was evaluated and the RO proposed to reduce the Veteran's disability rating. Specifically, the Veteran's 100 percent disability rating became effective in November 2006. Following a September 2007 VA examination, in November 2007, the RO proposed to reduce the Veteran's rating. As a result, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply. Nevertheless, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown, 5 Vet. App. at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. 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 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). The question of whether a disability has improved involves consideration of the applicable rating criteria. The Veteran's disability is rated under Diagnostic Code (DC) 6819. DC 6819 governs malignant neoplasms of any specified part of the respiratory system. Under DC 6819, a rating of 100 percent continues for beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastases, the rating is based on residuals. 38 C.F.R. § 4.97, DC 6819 (2012). DC 6844 provides that post-surgical residuals of lobectomy will be rated under the general rating formula for restrictive lung diseases. This formula provides the following criteria: A 100 percent disability rating for findings that show FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; 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 disability rating 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 cardio-respiratory limit). A 30 percent disability rating 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 disability rating 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. Respiratory disorders rated under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). Effective October 6, 2006, VA amended 38 C.F.R. § 4.96 to add provisions that clarify the use of pulmonary function tests (PFT's) in evaluating respiratory conditions. A new paragraph (d) to 38 C.F.R. § 4.96, entitled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" includes a provision requiring PFT's to evaluate respiratory conditions except in certain situations. When the PFT's are not consistent with clinical findings, evaluation should generally be based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96 (d)(3). The Veteran appeals the reduction of his service-connected lung disability from 100 percent to 30 percent effective June 1, 2008. The Veteran was diagnosed with lung cancer in October 2006 and underwent right upper lobectomy in November 2006. In an April 2007 rating decision, the Veteran was granted service connection for lung cancer with an evaluation of 100 percent, effective November 8, 2006. In a September 2007 VA respiratory examination, the VA examiner reported the Veteran was stable with no evidence of antineoplastic treatment or current chemotherapy or radiation treatment. The VA examiner diagnosed small cell lung carcinoma with ongoing severe obstructive pulmonary disease. Examination revealed FVC of 55 percent, FEV-1 of 46 percent predicted, and FEV-1/FVC of 65 percent, providing evidence against this claim. In November 2007, the RO informed the Veteran that review of his medical records showed improvement in his service-connected lung disability and informed the Veteran of the proposed reduction in his evaluation. The Veteran was also informed that he could submit medical evidence to show that the change should not be made and that he could have a hearing if he so desired. In a December 2007 private treatment record, the VA examiner reported no evidence of recurrence of lung cancer, but did report the Veteran would get dyspneic (difficulty with breathing) with little exertion. The VA examiner diagnosed moderately advanced COPD and asthma. In a separate December 2007 private treatment record, the private examiner reported the Veteran could barely exercise five minutes before having difficulty breathing. In a March 2008 rating decision, the Veteran's disability was reduced from 100 to 30 percent disabling, effective June 1, 2008. 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 regulations provide that 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 request a predetermination hearing. If a hearing is not requested or the Veteran requests a predetermination hearing but fails to appear without good cause and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). 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). Based on a review of the record, the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 100 to 30 percent for service-connected lung disability were properly carried out by the RO. Here, we note that the evidence shows the Veteran's cancer is inactive and that there has been no recurrence. In this regard, we note that there was no evidence of recurrence reported in the September 2007 VA examination; the VA examination revealed that his lung cancer was stable and without current treatment. In the December 2007 private treatment record, the private examiner reported no evidence of recurrence of lung cancer. In essence, once cancer was no longer active, and following the cessation of treatment, the Veteran was no longer eligible to be rated under the initial diagnostic code. See Bennett v. Brown, 10 Vet. App. 178 (Vet. App. 1997). Rather, the Veteran was to be rated on residuals. The Veteran was notified of a proposed reduction in November 2007. At that time, he was given notice that he could submit additional evidence, obtain a personal hearing and/or representation. He was given time to respond. Although the Veteran submitted private medical treatment records, which discussed the limitations caused by his disability, such does not negate that there has been no local recurrence or metastases of his lung cancer, or that the limitations are considered within the 30 percent evaluation for this disability, which indicates a 30 percent reduction in the ability of the Veteran to function (a significant disability). As the evidence shows that there is no evidence of active disease and no antineoplastic treatment or current chemotherapy or radiation treatment, the reduction of the schedular disability for service-connected lung disability was proper. 38 C.F.R. § 4.97, DC 6819. Finally, the reduction was made effective no sooner than permitted by current law and regulations ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). The Veteran has not contended that these provisions were not complied with. The Board finds that the reduction for service-connected lung disability was proper. As such, the Board will address the issue of whether a rating higher than 30 percent disabling is warranted for service-connected lung disability from June 1, 2008. To warrant a higher 60 percent rating, the evidence must show 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 cardio-respiratory limit). In the September 2007 VA examination, it was noted that there was a positive history of dyspnea. The VA examiner also reported decreased breath sounds. Examination revealed pre-bronchodilator results of FVC of 55 percent, FEV-1 of 46 percent, FEV1/FVC of 65 and DLCO of 60 percent. Post-bronchodilator results revealed FVC of 57 percent, FEV-1 of 48 percent predicted and FEV1/FVC of 66 percent. The examiner noted that the Veteran made good efforts and tolerated the procedure/treatment well without adverse reactions. A December 2007 private examination revealed pre-bronchodilator results of FVC of 59 percent, FEV-1 of 59 percent, and FEV1/FVC of 99 percent. Post-bronchodilator results revealed FVC of 61 percent, FEV-1 of 60 percent predicted and FEV1/FVC of 99 percent. The private examiner also reported Veteran was short of breath, visually labored, and had to stop to rest before leaving the treadmill room. In a December 2007 private treatment record, the private examiner reported the Veteran is even more symptomatic on exercise and that he should be considered significantly limited. A March 2008 private treatment record reflected wheezing, congestion, coughing, and shortness of breath. In an April 2008 private treatment record, the private examiner reported the Veteran had no clinical evidence of recurrent disease and that he was stable. The private examiner further reported that the Veteran continued to be challenged by breathlessness on exertion. The Veteran's representative has also submitted private treatment records reflecting Treadmill Metabolic Equivalent of Task (MET) measurements. These treatment records reflect Treadmill METs of 4.6 and 5.3. The Veteran's representative has also provided a conversion chart to convert METs into milliliters of oxygen per kilogram of body weight per minute (ml/kg/min) (1 MET = 3.5 ml/kg/min). See http://general.utpb.edu/fac/eldridge_j/kine3350/glossary.htm. Based upon these MET measurements, the Veteran has a maximum oxygen consumption of 16.1 and 18.55 ml/kg/min, respectively. Resoling all reasonable doubt in favor of the Veteran, based on the evidence above, the Board finds that the Veteran has met the requirements for a rating of 60 percent for service-connected lung disability from June 1, 2008. The evidence for that period shows a pre-bronchodilator result of FEV-1 of 46 percent and a post-bronchodilator result of FEV-1 of 48 percent predicted. The evidence also reflects maximum oxygen consumption of 16.1 and 18.55 ml/kg/min. A rating in excess of 60 percent is not warranted as the PFT results discussed above do not consistently reflect that the Veteran has FEV-1 less than 40 percent predicted; or FEV-1/FVC less than 40 percent; or DLCO(SB) of less than 40-percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiorespiratory limitation). Nor does the evidence show any cor pulmonale (right- sided heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or an episode or episodes of acute respiratory failure; or oxygen therapy. The Veteran's own statements are found to not support a higher evaluation. In this regard, it is important for the Veteran to understand that a 60 percent evaluation indicates a severe problem, with a 60% reduction in the Veteran's ability to function. Thus, with application of the benefit of the doubt, a 60 percent rating for the service-connected lung disability is granted. As the evidence reflects that throughout the period from June 1, 2008, the criteria for a 60 percent rating has been met, there is no need to address the applicability of staged ratings. Extraschedular Consideration Regarding referral for extraschedular consideration, consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the Veteran has not required frequent periods of hospitalization for his disability and that the manifestations of his disability are contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. The Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). Proper notice from VA 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in November 2006. This letter informed the Veteran of what evidence was required to substantiate his claims and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. There are also specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60 days is allowed for response. Id. The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e),(i). In November 2007, the RO issued a rating decision setting forth all material facts and reasons for reducing the rating assigned for the Veteran's disability from 100 percent to 30 percent. In an accompanying letter, dated December 4, 2007, the RO informed the Veteran that he could submit evidence to show that the rating should not be reduced and suggested what evidence would be the most probative. The RO also informed the Veteran that he could request, and VA would then afford him, a personal hearing to present evidence or argument on any point. In a March 2008 rating decision, the RO reduced the disability rating for service-connected lung disability to 30 percent, effective June 1, 2008. These actions by the RO complied with the duties to notify and assist, as well as the timing requirements for effecting the reduction, as specified in 38 C.F.R. § 3.105 . VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran 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). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private medical records and opinions. The appellant was afforded VA medical examinations in March and September 2007. The examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran's representative contends that the Veteran's service treatment records are not complete; however, he does not allege how those records would be relevant to the claim on appeal and even notes that the records are for a separate non-service connected disability (bilateral pes planus). Based upon the discussion above, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). ORDER Reduction of service-connected lung disability from 100 percent to 30 percent effective June 1, 2008, was proper, and the claim is denied. A rating of 60 percent for service-connected lung disability from June 1, 2008, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs