Citation Nr: 1314380 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-18 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether the 100 percent schedular rating for Hodgkin's disease status-post stem cell transplant was properly reduced to 20 percent, effective July 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from October 1996 to September 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that reduced the disability rating from 100 percent to 20 percent for service-connected Hodgkin's disease status-post stem cell transplant, effective from June 1, 2009. A subsequent RO rating decision in May 2009 established a corrected effective date of July 1, 2009 for the 20 percent rating. This case was before the Board in August 2012 when it was remanded for additional development. The Veteran testified before a Decision Review Officer hearing at the RO in February 2009 and before the undersigned at a videoconference hearing in December 2012; transcripts of these hearings are associated with the claims file. At the hearing the Veteran was granted a 60-day abeyance period for the submission of additional evidence. That period of time has lapsed, and no additional evidence has been received. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was granted service connection for Hodgkin's disease by a rating action in February 2002 and a 100 percent evaluation was assigned, effective September 19, 2001. 2. By a rating action in November 2008, the RO proposed a rating reduction from 100 percent to 20 percent; the Veteran was notified of this proposed reduction by letter dated November 19, 2008. 3. A March 2009 rating action reduced the evaluation for Hodgkin's disease from 100 percent to 20 percent, effective from June 1, 2009. A subsequent RO rating decision in May 2009 established a corrected effective date of July 1, 2009 for the 20 percent rating. 4. The 100 percent rating had been assigned for more than five years. 5. The VA treatment records dated from September 2007 to October 2008 and the August 2008 QTC examination on which the reduction was based do not demonstrate sustained improvement to the Veteran's Hodgkin's disease and the rating reduction was not based on a review the Veteran's disability in relation to its history. CONCLUSION OF LAW The Veteran is entitled to restoration of a 100 percent disability rating for Hodgkin's disease status-post stem cell transplant. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.117, Diagnostic Code 7715 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Regarding the reduction issue at hand, the Veteran was sent a proposed rating reduction in November 2008 that explained the proposed reduction and was issued prior to the reduction of benefits. The letter informed the Veteran of what type of information and evidence was needed to show that a reduction was not warranted and instructed him that he had 60 days within which to file any such additional information. See 38 C.F.R. § 3.105(e). The Veteran was also informed of his ability to request a personal hearing prior to the reduction. Such hearing was held in February 2009. Accordingly, no further development is required with respect to the duty to notify. In this case, and for the reasons set forth below, the Board herein decides to award full restoration of the 100 percent disability rating for service-connected Hodgkin's disease. As such, further analysis of whether the VCAA has been complied with is unnecessary here. Rating Reduction In a February 2002 rating decision, the Veteran was awarded service connection for Hodgkin's disease. A 100 percent evaluation was assigned, effective September 19, 2001, under Diagnostic Code 7709. See 38 C.F.R. § 4.117. Subsequently, an October 2004 rating decision reduced the evaluation for Hodgkin's disease from 100 percent to 60 percent, effective October 31, 2004. A November 2004 rating decision restored the 100 percent rating, effective October 31, 2004. In a November 2008 rating decision, the RO proposed to reduce the rating from 100 to 0 percent for Hodgkin's disease. In the March 2009 rating decision on appeal, the RO reduced the rating to 20 percent effective June 1, 2009. A subsequent RO rating decision in May 2009 established a corrected effective date of July 1, 2009 for the 20 percent rating. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in disability rating 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). Here, the RO notified the Veteran of the proposed rating reduction by letter dated November 19, 2008, and explained that he had 60 days in which to submit additional evidence prior to the rating reduction taking effect. The Veteran responded with private medical evidence and requested a predetermination hearing. This hearing was held in February 2009. A March 2009 rating decision confirmed the proposed rating and the RO notified the Veteran by letter dated April 9, 2009, of the final decision reducing the evaluation for Hodgkin's disease from 100 percent to 20 percent, effective from June 1, 2009. A subsequent RO rating decision in May 2009 established a corrected effective date of July 1, 2009 for the 20 percent rating. Thus the procedural requirements of 38 C.F.R. § 3.105(e) were met. In addition, 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where 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). The provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more). The relevant period for this purpose is calculated from the effective date of the establishment of the former rating, to the effective date of the reduction. See Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Id.; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a preponderance of evidence weighs against the claim. Brown, at 421. In Tucker v. Derwinski, 2 Vet. App. 201 (1992), the Court noted that the failure to review the record rendered the examination on which a reduction was based inadequate because the disability was not viewed in relation to its history, citing 38 C.F.R. § 4.1. Here, the 100 percent rating had been in effect since September 19, 2001, and the effective date of the actual reduction is July 1, 2009. Thus the duration of the 100 percent rating is more than five years, and the provisions of 38 C.F.R. § 3.344(a) are for application. Under 38 C.F.R. § 4.117 Diagnostic Code 7709, a total (100 percent) evaluation is warranted with active Hodgkin's disease or during a treatment phase. The note accompanying this diagnostic code further instructs 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 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, rate on residuals. 38 C.F.R. § 4.117, Diagnostic Code 7709. The grant of a 100 percent evaluation was based, in part, on service treatment records that showed: a lymph node biopsy and diagnosis of Hodgkin's disease in October 2000; chemotherapy treatment from October 2000 to April 2001; radiation treatment from April 2001 to May 2001; and a finding of remission in September 2001. A January 2002 VA examination report also noted a finding of remission. June 2004 VA treatment records show the recurrence of Hodgkin's disease with a mass noted on chest X-ray studies. Chemotherapy was resumed. In November 2004 the Veteran underwent autologous stem cell transplantation, and achieved only partial remission. Radiation treatment followed. December 2005 VA treatment records note that a CT scan of the thorax revealed indeterminant right lower lobe lung nodules that were unchanged from a previous scan. In March 2007 the Veteran underwent a periodic Naval Reserve examination. The examiner noted the Veteran's complaints of fatigue. He indicated that he saw his oncologist every three months for follow up visits, but denied any recent lymph node enlargement. The examiner found that the Veteran's Hodgkin's disease had been stable for the past year, but was not in remission. In a July 2007 addendum, the examiner added that the Veteran was at a very high risk for recurrence. In a September 2007 statement, a VA staff physician in hematology oncology noted the Veteran's onset of Hodgkin's disease in 2000 with recurrence in 2004. He stated, "Despite the radiation, [the Veteran] continues to have evidence of persistent disease, with active nodes, based on his most recent CT/PET scans." September 2007 VA CT scans revealed the presence of right lung small indeterminate nodules and mildly prominent left periaortic lymph nodes. The impression was "no convincing evidence" for lymphoma. Specifically, no enlarged lymph nodes "by CT measurement criteria" were noted within the chest, abdomen, or pelvis. The radiologist added that direct comparison with other examinations would provide improved comments regarding the regression or resolution of the disease. No such comparison was made. An April 2008 VA outpatient treatment record notes that CT scans revealed no evidence of disease progression and laboratory tests were within normal limits. An August 2008 QTC examination report notes the Veteran's complaints of fatigue and medical history (as reported by the Veteran), to include treatment for Hodgkin's disease until 2005. The examiner stated, "The malignancy is still active and the extent of the disease is residual nodules in and above the mediasternum." The only diagnostic test conducted was a blood test, which showed an abnormal platelet count. There is no indication that the examiner reviewed the Veteran's claims file; all medical history was provided by the Veteran and the examiner did not cite to any specific medical records. October 2008 VA CT scans revealed the presence of parenchymal right lung nodules, which were noted to be stable to slightly smaller than on an April 2008 scan. A few stable, small left periaortic lymph nodes were also noted. No new nodules were noted. In an addendum to the August 2008 examination report, the QTC examiner was provided with a written summary of the September 2007 and October 2008 CT scan results. He stated that these findings did not change the diagnosis he previously provided in August 2008. The Veteran's evaluation was reduced based on the findings of the VA medical records dated from September 2007 to October 2008, and the August 2008 QTC examination report. In reviewing the examination report, the Board finds the examination is inadequate to serve as a basis for reducing the Veteran's disability evaluation. In this regard, no CT scans or biopsies were ordered in conjunction with the examination. (The Veteran's original diagnosis in October 2000 was made after a lymph node biopsy.) Moreover, the VA medical records actually note evidence of persistent Hodgkin's disease, see September 2007 VA staff physician's statement. While no treatment for or progression of the disease was noted, findings of residual enlarged lymph nodes were noted on CT scans, see September 2007 and October 2008 VA CT scan reports. Again, no biopsy was conducted. Additionally, the QTC examiner did not review the claims folder in conjunction with the examination, or otherwise have an accurate understanding of the history of the disability. See Tucker, supra. The Board finds that the RO's March 2009 rating action reducing the Veteran's disability evaluation for Hodgkin's disease from 100 percent to 20 percent did not meet the regulatory standards of 38 C.F.R. § 3.344 and is therefore improper. The November 2008 rating decision essentially proposed a rating reduction on the basis of sustained improvement. When viewed in total, the evidence of record does not clearly warrant a conclusion that sustained improvement has been demonstrated. The evidence does not make it reasonably certain that any improvement shown at will be maintained under the ordinary conditions of life. Further, the reduction on the basis of an examination which had not viewed the Veteran's Hodgkin's disease in relation to its history is improper. In sum, the reduction in rating is not sustainable and a restoration of the prior rating is warranted. ORDER The reduction in the rating for Hodgkin's disease status-post stem cell transplant from 100 percent to 20 percent was not proper, and the 100 percent rating is restored, effective the date of the reduction. ______________________________________________ JONATHAN KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs