Citation Nr: 1314880 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 12-02 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 1. Whether the reduction of left lower lung lobectomy status post lung cancer from 100 percent to 0 percent effective December 1, 2011, was proper. 2. Entitlement to a compensable evaluation for left lower lung lobectomy status post lung cancer from December 1, 2011. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and son ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from April 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. It is noted that the RO granted in March 2012 service connection for shingles as secondary to service-connected lung disability at the 10 percent disability level, effective from January 26, 2012. The Veteran has not appealed the disability evaluation or effective date assigned. No appeal is before the Board in this regard. In April 2013, the Veteran along with his son testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The record shows that the RO reviewed pertinent VA treatment records dated through January 2012 located in Virtual VA. The record further shows that those records associated with the Virtual VA after issuance of the most recent Statement of the Case dated in January 2012 are either duplicative or cumulative of the evidence in the paper claims file or are irrelevant to the issue herein decided. Referral to the RO for issuance of a Supplemental Statement of the Case is not required as there are no material changes in, or additions to, the information included in the SOC. 38 C.F.R. § 19.31. The REMAND portion of this decision addresses the issue of entitlement to a compensable evaluation for left lower lung lobectomy status post lung cancer from December 1, 2011. 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 June 2011, the RO notified the Veteran of a rating decision proposing to reduce the evaluation for service-connected left lower lung lobectomy status post lung cancer from 100 percent to 0 percent. 2. A rating decision dated in September 2011 reduced the 100 percent schedular rating assigned for service-connected lung disability to 0 percent, effective December 1, 2011. 3. At the time of the reduction, a 100 percent rating for the Veteran's disability had been in effect since May 17, 2010, less than five years. 4. At the time of the reduction, there was no active malignancy; since lung surgery in April 2010, there has been no evidence of malignant neoplasms, local recurrence, or metastasis. CONCLUSION OF LAW 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). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act (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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 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). Here, this appeal arises from the RO initiated action to reduce the Veteran's disability evaluation for left lower lung lobectomy status post lung cancer from 100 percent to 0 percent. The RO sent to the Veteran a letter dated in June 2011 accompanied by the rating decision proposing the reduction, which notified the Veteran of the proposed action, the basis for that action, and that he could submit evidence to show that a reduction in award was not warranted. 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 important point in his claim. The RO received no response from the Veteran. In September 2011, the RO notified the Veteran by a letter that the proposed reduction had been effectuated effective from December 1, 2011. This letter included a copy of the September 2011 ratting decision effectuating the proposed reduction. This rating decision set forth all material facts and reasons for reducing the rating assigned for the Veteran's disability from 100 percent to 0 percent. In the letter, dated September 2011, the RO informed the Veteran that he could submit evidence to show that the rating should not be reduced. The RO issued to the Veteran a Statement of the Case in January 2012, which outlined all the evidence considered, the relevant laws and regulation, and the reasons and bases for the decision. In September 2012, the RO sent the Veteran a letter requesting that he provide VA treatment records related to his condition or provide VA with information and authorization to obtain such on his behalf. The RO further advised the Veteran that he could submit lay statements in support of his claim;VA would obtain all pertinent records of VA treatment; and how VA determines disability ratings and effective dates. No pertinent evidence was subsequently received by the RO. These actions by the RO essentially 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. There is no indication or reason to believe that the ultimate decision of the RO on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Moreover, VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not demonstrated any prejudicial or harmful error in VA's notice on this matter. VA also has a duty to assist in the development of the claims. Pertinent outstanding treatment records were obtained and associated with the claims file and/or Virtual VA. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Also, the VA afforded the Veteran a VA examination in connection with this claim. Although the Veteran suggested at his hearing that the VA examination dated in May 2011 was inadequate because the examiner did not examine his lungs, the Board's review of the May 2011 report of examination shows that the VA treatment records were reviewed, a pertinent medical history obtained, and a physical exam conducted. The report of examination includes relevant pulmonary examination findings. The report of examination further includes pulmonary function tests and x-ray results. Therefore, the Board concludes that the Veteran was afforded an adequate examination in this matter. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). See also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Lastly, VA afforded the Veteran a hearing on appeal. A hearing transcript is associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Board observes that the Veteran was assisted at the hearing by an accredited representative from the Nebraska Department of Veterans Affairs who asked questions intended to elicit answers supporting the Veteran's claim for restoration of a 100 percent evaluation for lung disability, to include the nature of treatment and symptoms. The VLJ clarified for the record that the issue on appeal was that of restoration of a 100 percent rating for left lower lung lobectomy status post lung cancer. Testimony clearly established that the Veteran had had no recurrence or metastasis of lung cancer, and testimony focused on the Veteran's current symptoms and limitations. No pertinent evidence that might have been overlooked and that might substantiate the claim for restoration was identified by the Veteran or his representative. The hearing essentially focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for restoration, as evidence by his testimony on symptoms, restricted activities, and his argument that the VA examination in May 2011 was inadequate. Therefore, the Board finds that, despite any oversight with respect to Bryant, there was no actual harm to the Veteran. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Entitlement to Restoration of a 100 Percent Disability Rating The Veteran seeks restoration of a 100 percent disability rating for left lower lung lobectomy status post lung cancer. He testified that restoration of the 100 percent rating was warranted for the following reasons: The reduction was too much of a reduction; he has shortness of breath; and he has restricted activities. The Veteran denied recurrence or metastasis of lung cancer. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Legal Criteria 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. 38 C.F.R. § 3.344(c); 3.343(a). 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. 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 6819 (malignant neoplasms of any specified part of the respiratory system). Under Diagnostic Code 6819, a rating of 100 percent shall continue 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, Diagnostic Code 6819. Diagnostic Code 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 Forced Expiratory Volume in one second (FEV-1) less than 40 percent of predicted value, or; the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by 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 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. A 10 percent rating is assigned for FEV-1 of 71- to 80-percent predicted value, or; the ratio of FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) is 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 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 PFTs 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 PFTs to evaluate respiratory conditions except in certain situations. When the PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs 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 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. Id. Factual Background The Veteran appeals the reduction of his service-connected lung disability from 100 percent to 0 percent effective December 1, 2011. VA treatment records show that Veteran had suspicious mass in his left lower lobe in December 2009. A December 2009 needle aspiration biopsy was inconclusive although indicated that findings were suspicious for squamous cell carcinoma. PET scan and MRI were ordered to further evaluate for cancer. Lung cancer was diagnosed is in March 2010. In April 2010, the Veteran underwent left lower lobectomy to excise the tumor. Chemotherapy was advised, but the Veteran declined. Report of VA examination dated in September 2010 reflects evaluation of the Veteran. The diagnosis was squamous cell carcinoma of the lung, status post left lower lobectomy. Symptoms were noted as decreased concentration, lack of stamina, weakness or fatigue, pain, dyspnea at rest and with all exertion. PFT results were FEV-1 of 96.6 percent; FVC of 107.8 percent; FEV-1/FVC of 61 percent; and DLCO of 96 percent. PFTs were interpreted as showing a normal pattern "flow volume loop," mild airflow obstruction with no improvement after bronchodilators, and normal lung volumes and diffusion capacity. There was no significant change in PFTs when compared to testing in August 2006. In an October 2010 rating decision, the RO granted service connection for lung cancer status post left lower lobectomy with an evaluation of 100 percent, effective May 17, 2010. A separate 10 percent evaluation for residual scar was assigned as well. VA treatment note dated in December 2010 reflect that CT of chest shows no obvious recurrence of lung cancer. VA respiratory examination dated in May 2011 reflects findings for stable postoperative changes of partial left lobectomy and emphysema unchanged. The diagnoses were (1) lung cancer, adenocarcinoma left lung with status post lower lobe lobectomy, active and (2) chronic obstructive pulmonary disease. The examiner stated that the Veteran was very limited in his activities due to his lack of energy, easy fatigability, and shortness of breath. Treatment includes inhalers to help with breathing and gualfenesin 400 mg 4 times daily for chronic cough. His course since onset was described as progressively worse. The examiner indicated that the Veteran was retired and able to do very light gardening on a good nice day and help his wife with dishes, but was otherwise very limited in his ability to perform or help with household chores. The examiner noted that treatment for adenocarcinoma had been completed. The examiner clarified the use of the term "active" in a supplemental statement dated May 2011, indicating he meant that the condition has no known recurrence but continued to be monitored for recurrence. PFTs showed FEV-1 of 92 percent; FVC of 104.5 percent; FEV-1/FVC of 60 percent; and DLCO of 75.5 percent. In June 2011, the RO notified the Veteran of the proposed rating reduction for his lung disability from 100 percent to 0 percent. In September 2011, the RO effectuated the proposed reduction and notified the Veteran of this action. In these actions, the RO informed the Veteran that review of his medical records showed improvement in his service-connected lung disability; and informed him 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. VA treatment records dated since June 2011 show no recurrence or metastasis of lung cancer. A December 2011 note indicated that there was no evidence of pulmonary lesion or lymphadeopathy. The assessment indicated there was no evidence of local recurrence or metastases and the Veteran was to return in 6 months for continued surveillance. It was noted that the Veteran had a history of chronic obstructive pulmonary disease and asthma, and that he reported worsened shortness of breath that "is unlikely related to operation at this point in time." The plan was to refer the Veteran for pulmonary evaluation. Analysis 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 0 percent for service-connected lung disability were properly carried out by the RO. Here, the evidence shows the Veteran's cancer is inactive and that there has been no recurrence. In this regard, there was no evidence of recurrence reported in the May 2011 VA examination; the VA examination revealed that his lung cancer was essentially stable and without current treatment. VA treatment records show 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 June 2011. At that time, he was given notice that he could submit additional evidence, and obtain a personal hearing and/or representation. He was given time to respond. Although the medical evidence and Veteran's testimony reflects his physical limitations and breathing difficulties, 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 0 percent evaluation for this 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, Diagnostic Code 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. Accordingly, the Board finds that the reduction for service-connected lung disability was proper. However, the Board will address the issue of whether a compensable rating is warranted for service-connected lung disability from December 1, 2011, in the below remand. ORDER Restoration of a 100 percent for status post left lower lung lobectomy status post cancer is denied. REMAND Having carefully reviewed the evidence of record, the Board finds that remand is necessary for a VA examination of the Veteran's respiratory condition that includes a current PFT. Although report of VA examination dated in May 2011 included PFT findings (located in Virtual VA only), the Veteran testified that his respiratory condition was worse than when he was last examined. He further reported during VA outpatient treatment in 2011 that he believed his shortness of breath had worsened. VA's duty to assist requires that VA obtain a medical examination when necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Where the evidence of record does not reflect the current state of the disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Also, reexamination will be requested whenever there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a). Lastly, when a veteran avers that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); VAOPGCPREC 11-95 (April 7, 1995). Accordingly, the matter is remanded to the RO or the Appeals Management Center (AMC) 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) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 1. The RO or AMC should obtain all updated VA treatment records and any other outstanding records pertinent to the Veteran's claim; and should provide the Veteran with VCAA notice on the evidence or information necessary to establish a claim for a compensable evaluation for service-connected left lower lung lobectomy status post lung cancer from December 1, 2011, to include the schedular criteria. 2. The RO should schedule the Veteran for a VA examination by an appropriately trained physician to ascertain the nature and severity of all residuals associated with service-connected left lower lung lobectomy status post lung cancer. All indicated tests and studies should be performed, to include a pulmonary function study. All results and findings should be associated with the report of examination. The physician should review the claims file along with copies of any pertinent medical records located in the Veteran's Virtual VA file that are not included in the claims file. 3. Then, the RO should also undertake any other development it determines to be warranted. 4. After the development requested above has been completed to the extent possible, the RO should adjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the claims files are returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter or 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. 2012). ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs