Citation Nr: 1317098 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 11-25 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a rating higher than 10 percent for chest pain and shortness of breath due to undiagnosed illness, including the propriety of the reduction of the rating from 100 to 10 percent effective April 1, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty in the military from September 1971 until retiring in September 1991. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which reduced the rating for the Veteran's chest pain and shortness of breath from 100 to 10 percent prospectively effective as of April 1, 2010. In February 2013, in support of his claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. A transcript of the proceeding is of record. In his notice of disagreement (NOD), the Veteran indicated that he disagreed with the January 2010 rating decision reducing the rating for his service-connected disability. The RO then proceeded to readjudicate his claim in a September 2011 statement of the case (SOC), identifying the issue being appealed as entitlement to a rating greater than 10 percent for this service-connected disability, so on the premise this is an increased-rating claim rather than an opposition to the reduction in the rating for this disability. But the Board must consider both the propriety of the new rating as well as the propriety of the reduction of the former rating to this lesser level and, in the process, consider whether the RO impermissibly reversed the burden of proof and required the Veteran to show his disability had worsened (or, at the very least, had not gotten better) instead of the RO having to show the disability had improved to warrant the lesser rating. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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. To that end, in a rating-reduction case, VA has the burden of establishing 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). Prior to reducing a disability rating, VA is required to comply with several general VA 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; see also Brown v. Brown, 5 Vet. App. 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). VA regulations also provide that, where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In certain rating-reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. This section 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. However, the provisions of 38 C.F.R. § 3.344 specify that ratings on account of diseases subject to temporary or episodic improvement, such as psychiatric disorders, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The regulations provide further that these considerations are required for ratings that have continued for long periods at the same level (5 years or more), and that they do not apply to disabilities that have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction. The requirements for a reduction in the evaluation for disabilities in effect for five years or more are set forth at 38 C.F.R. § 3.344, which require that only evidence of sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examinations, can justify a reduction. If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. Furthermore, under 38 C.F.R. § 3.344, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 419. 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 of the contemplated action and furnished detailed reasons. The beneficiary must be given 60 days for the presentation of additional evidence. 38 C.F.R. § 3.105(e). The United States Court of Appeals for Veterans Claims (Court/CAVC) 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). The law provides that, where a rating reduction was made without observance of law, although a remand for compliance with that law normally would be an adequate remedy, in a rating-reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. Here though, notably, as the prior 100 percent rating had not been in effect for at least five years, it was not subject to the procedural safeguards and protections provided by 38 C.F.R. § 3.344. The duration of a rating is measured from the effective date assigned to the rating until the effective date of the actual reduction. See Brown, 5 Vet. App. at 417-18. The Veteran's prior 100 percent rating took effect on August 29, 2005, and was reduced to 10 percent effective April 1, 2010, so slightly before five years had passed. His claim nonetheless requires further development, so the Board is remanding his claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In a December 1997 rating decision, the RO granted service connection for chest pain and shortness of breath as due to undiagnosed illness and assigned an initial 10 percent rating retroactively effective from January 29, 1997. In a subsequent February 1999 decision, the RO confirmed and continued that 10 percent rating. But in a December 2005 rating decision, the RO granted the higher 100 percent rating effective August 29, 2005, based on a November 2005 VA pulmonary function test (PFT) finding of an FEV-1 (forced expiratory volume in one second) score of 27 percent. In a December 2007 rating decision, the RO confirmed and continued the 100 percent rating. But in a subsequent March 2009 decision, the RO proposed to reduce the rating to 10 percent based on a January 2009 FEV-1 finding of 80 percent. This proposed rating reduction was then effectuated by the January 2010 rating decision at issue in this appeal, with, as mentioned, the reduction taking effect prospectively as of April 1, 2010. The ratings for the chest disability have been assigned under 38 C.F.R. § 4.97, hyphenated Diagnostic Code 8866-6604, as analogous to chronic obstructive pulmonary disease (COPD). In the assignment of Diagnostic Code (DC) numbers, hyphenated DCs may be used. Injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. Diseases will be identified by the number assigned to the disease itself, followed by a hyphen, with the residual condition listed last. See 38 C.F.R. § 4.27. Under this Code, a 100 percent evaluation is warranted if the FEV-1 is less than 40 percent of predicted value, or; the ratio of FEV-1/Forced Vital Capacity (FVC) is less than 40 percent, or the Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath method (DLCO (SB)) is less than 40-percent predicted, or the maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or there is cor pulmonale (right heart failure), or there is right ventricular hypertrophy, or there is pulmonary hypertension (shown by echo or cardiac catheterization), or; there is an episode(s) of acute respiratory failure, or the Veteran requires outpatient oxygen therapy. The Veteran last had a VA compensation examination assessing the severity of his chest disability in January 2009, with accompanying PFTs done in March 2009. PFTs also were subsequently performed in the VA outpatient setting in May 2010, but the results were found to be of poor quality and, thus, not subject to interpretation. PFTs were done again in October 2011, resulting in conclusions of severe obstructive airway disease and severe restriction. Additional PFTs, along with cardiac stress testing, were done in January 2012 resulting in an assessment of normal lung and cardiac function. At the time, the Veteran reported experiencing exertional dyspnea with exercise tolerance that was the same over the last 4 to 5 years, but that had decreased since the beginning of the symptoms, along with left-sided chest pain every now and then without any relation to the exertion. The examining physician noted that the most likely reason for the Veteran's dyspnea appeared to be deconditioning with a psychosomatic component. During his February 2013 hearing before the Board, the Veteran essentially alleged that his chest disability manifested primarily by shortness of breath and that it had worsened significantly since his January 2009 VA examination. The Board sees that the PFTs done in 2009 and thereafter did not include DLCO findings, nor did they include maximum exercise capacity (VO2 max) findings. Generally, a respiratory disability such as the Veteran's can be assigned a rating in the absence of maximum exercise capacity findings. See 38 C.F.R. § 4.96 (d)(1)(i). It also can be appropriate to rate such disability in the absence of a DLCO finding if the examiner indicates why the test would not be useful or valid in the Veteran's particular case. See 38 C.F.R. § 4.96 (d)(2). The Board also sees the Veteran's disability has been described over the years as involving impairment of his diaphragm. In an April 2009 letter, a treating VA physician indicated the Veteran had experienced a spontaneous pneumothorax (i.e., a collection of air or gas in the space between the lungs and the chest that "collapses" the lung and prevents it from inflating completely) in 1986 and that he had ongoing difficulty breathing as a consequence of that. This doctor also noted that a chest X-ray in 2003 had shown an elevated left hemidiaphragm, which was contributing to the Veteran's continual shortness of breath. Also, during the January 2009 VA examination, the Veteran was diagnosed with paralysis of his left hemidiaphragm with basilar atelectasis. Similarly, an October 2011 CT scan of his chest showed elevation of his left hemidiaphragm with associated atelectasis/scar in the right lung base. The diagnostic impression was volume loss in the left hemithorax with elevation of the left hemidiaphragm out of proportion to the amount of atelectasis identified. It was noted this finding suggested chronicity and was increased in comparison to the prior multiple studies. A repeat fluoroscopic SNIFF test (fluoroscopic test to check how the diaphragm moves) was recommended to evaluate for paralysis of the left diaphragm. A subsequent December 2011 fluoroscopic SNIFF test showed findings of slight elevation of the posterior left hemidiaphragm with slightly diminished excursion upon inspiration and expiration. There was also questionable paradoxical movement of the left hemidiaphragm upon rapid inhalation and exhalation through the nose. The diagnostic impression was eventration of the left hemidiaphragm. Given these clear findings of diaphragmatic disability, it appears the service-connected chest disability is most appropriately rated as paralysis or paresis of the diaphragm under DC 6840. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of DC should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). This however notwithstanding, the rating criteria employed under this other DC are essentially identical to those employed under DC 6604. Given that the existing record contains inconsistent PFT findings both before and after January 2009; given that PFTs from January 2009 forward have not included DLCO findings; given that the Veteran essentially alleged worsening of the chest disability during his February 2013 hearing (albeit general worsening since the January 2009 VA examination rather than specific worsening since the most recent January 2012 PFT); and given that his respiratory disability includes what appears to be a somewhat uncommon component (i.e., diaphragmatic paralysis/eventration), the Board finds that another VA compensation examination is needed prior to final adjudication of this claim. The examination should include PFT, including DLCO testing, unless the examiner indicates why the test is contraindicated or would not be useful in the Veteran's case. The examination should also include maximum exercise capacity (i.e., VO2 max) testing, as the Veteran has consistently reported that he has significant shortness of breath even on just minimal-to-no exertion and that he is quite limited in his ability to exercise or otherwise engage in physical activity. In reviewing the claims file prior to the examination, the examiner should specifically take note of the varying PFT findings of record from 2009 forward, including those from March 2009, May 2010, October 2011 and January 2012. The examiner should also specifically take note of the Veteran's apparent continued inability to engage in any significant physical activity without experiencing severe shortness of breath (consistently reported by him but also confirmed by at least some of the treating and/or evaluating clinicians). Prior to arranging for this additional VA examination, any records of more recent VA treatment or evaluation of this respiratory disability since September 2012 should be obtained. 38 C.F.R. § 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (indicating VA has constructive, if not actual, notice of the existence of these additional records since generated and maintained within VA's medical healthcare system, so deemed to be in VA's possession even if not at the moment physically in the file). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. All records of additional VA treatment or evaluation of this respiratory disability since September 2012 should be obtained. Since these records are in the custody of a Federal department or agency, namely, VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), so make as many attempts to obtain these additional records as this VA regulation requires. Also appropriately notify the Veteran if unable to obtain these records. 2. Upon receipt of all additional records and association of them with the claims file, arrange for the Veteran to undergo another VA compensation examination to reassess the severity of his service-connected chest disability with shortness of breath due to undiagnosed illness. Prior to the examination, the claims file, including a complete copy of this remand, must be made available to the evaluating physician for review of the relevant medical and other histories. Along with reviewing all of the other information deemed pertinent to reassessing the severity of this respiratory disability, the examiner should specifically take note of the varying PFT findings of record from 2009 forward, including those from March 2009, May 2010, October 2011 and January 2012. The examiner should also specifically take note of the Veteran's apparent continued inability to engage in any significant physical activity without experiencing severe shortness of breath, a phenomenon consistently reported by him but also reaffirmed by at least some of the doctors who have treated and/or evaluated him. A notation to the effect that this record review took place should be included in the examination report. All indicated tests and studies should be accomplished, and all clinical findings reported in detail. The examination report should specifically include PFT findings, including post-bronchodilator FVC, FEV-1, FEV-1/FVC, DLCO (SB), and a specific finding concerning the Veteran's maximum exercise capacity (VO2 max). If the DLCO test is not performed, the examiner should provide explanation as why this test is contraindicated or would not be useful or valid in evaluating the nature and extent of the Veteran's disability. Similar reasons should be provided if the post-bronchodilator values are not reported. The examiner should also indicate whether the Veteran has cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or whether he requires outpatient oxygen therapy as a result of his chest disability with shortness of breath. Additionally, the examiner should provide an opinion as to the overall level of functional impairment experienced by the Veteran due to the chest pain and shortness of breath. All examination findings, along with a complete rationale for all opinions expressed, should be set forth in the examination report. 3. Then readjudicate the claim in light of this and all other additional evidence. This readjudication must consider first the propriety of reducing the Veteran's rating from 100 to 10 percent as of April 1, 2010 (VA has this burden of showing the disability had improved to warrant the reduction), then whether a rating higher than 10 percent is warranted (the Veteran's burden of showing the disability has worsened). Only, however, if VA shows the reduction from 100 to 10 percent was justified does the Veteran then in turn have to show a rating higher than 10 percent is warranted. So the AMC/RO must be careful to apply the burden of proof to the correct party - VA versus the Veteran. This additional consideration of the claim also must include determining whether the claim should be referred for an extra-schedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). If reinstatement of the prior rating is not done or the Veteran does not receive the rating he believes he is entitled to, then provide him and his representative a supplemental SOC (SSOC) and give them opportunity to respond to it before returning the file to the Board for further consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).