Citation Nr: 1317347 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-26 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether the reduction of the disability rating for non-Hodgkin's lymphoma (NHL) from 100 percent to noncompensable (zero percent), effective May 1, 2008, was proper. ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a June 2007 rating decision, the RO proposed to reduce the evaluation for service-connected NHL from 100 percent to noncompensably disabling, effective October 1, 2007. The RO implemented that reduction in a February 2008 rating decision, effective May 1, 2008. The issue of entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected NHL has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for any appropriate action. FINDING OF FACT Based on the evidence of record, the Veteran last received chemotherapy treatment for his service-connected NHL in August 2005; there is no evidence to show current active disease. CONCLUSION OF LAW The discontinuance of the 100 percent evaluation for the Veteran's non-Hodgkin's lymphoma, effective May 1, 2008, was proper. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.105(e), 3.344, 4.117, Diagnostic Code 7715 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) Initially, the Board notes that this appeal stems from disagreement with a 38 C.F.R. § 3.105(e) reduction and is not based on a claim or application for benefits. The regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements, which will be discussed in greater detail below. See 38 C.F.R. § 3.105(e), (i) (2012). For this reason, the Board concludes that the VCAA does not apply to the claim decided herein. The Board further concludes that VA has complied with the notification and due process requirements applicable to reduction of evaluations. Specifically, a July 2007 letter advised the Veteran of the proposed reduction. Following the rating decision that reduced the disability evaluation, the Veteran's claim was readjudicated in a Statement of the Case (SOC). The SOC and March 2009 notice informed the Veteran of the relevant laws and regulations, to include the rating criteria applicable to his disability. Additionally, the Veteran was afforded the opportunity to testify in support of his claim at a hearing, which he declined. The Veteran has been provided every opportunity to submit evidence and argument in support of his claim, and his claim was most recently readjudicated in a January 2013 Supplemental Statement of the Case (SSOC). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. Even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). As contemplated by 38 C.F.R. § 3.344(c), the Veteran was provided a VA examination in August 2012 to determine the current severity of his NHL. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. As such, the Board concludes the August 2012 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Given the August 2012 VA examination and report and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its July 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria In rating reductions, when VA contemplates reducing an evaluation for a veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e); see O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007) (noting that "Congress enacted section 5112(b)(6) so that veterans receiving disability compensation would be notified in advance that their benefits would be diminished, thus enabling them to (1) adjust to the diminished expectation and (2) submit evidence to contest the reduction," and that § 3.105(e) "furthers Congress's intent" in this regard). As enumerated in 38 C.F.R. § 3.105(e), "[w]here the reduction in evaluation of a service-connected disability or employability status 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 will be prepared setting forth all material facts and reasons." 38 C.F.R. § 3.105(e). In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." Id. The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing," 38 C.F.R. § 3.105(i), and thereafter, a "final rating action will be taken and the award will be reduced or discontinued effective 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." See 38 C.F.R. §§ 3.105(e); 3.500(r) (2012). In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. Pertinent to the instant case, according to 38 C.F.R. § 3.344(c), where a rating or ratings have been in effect for less than five years, as here, "[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c); see also Faust v. West, 13 Vet. App. 343, 351 (2000) (noting that § 3.344(c) sets forth the provisions relating to disabilities which are likely to improve, and states that "[t]he provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more)"); see also Brown v. Brown, 5 Vet. App. 413, 417 (1993) (holding that five-year period in § 3.344(c) is to be measured from effective date of rating not from date of RO decision assigning that rating). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Where the reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a net reduction of compensation payments currently being made, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his proper address of record of the contemplated action, furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 U.S.C.A. § 5112(b)(6); 38 C.F.R. § 3.105(e). Factual Background and Analysis The Veteran contends that his 100 percent rating for NHL should be restored. He maintains that he has shown he has cancer and that should be sufficient for the continuation of compensation benefits. He also contends that VA has no proof that he no longer has cancer. The Veteran also contends that the growth seen on his liver has been shown to be indicative of cancer in other patients. He also describes having an "odd-shaped bone growth" around his collar. As a preliminary matter, the Board determines that the RO followed the proper procedural protocol for rating reductions, as mandated by 38 C.F.R. § 3.105(e). In particular, the RO indicated in a July 2007 letter and accompanying June 2007 rating decision the proposed reduction, which set forth "all material facts and reasons," to include a discussion of current medical treatment records and the applicable rating criteria. In addition, the RO correctly informed the Veteran about the proposed rating reduction, that he could partake in a hearing, could submit evidence in support of not reducing his disability ratings, as well as the pertinent 60-day timeline for submission of such evidence. The RO effectuated its reduction decision in February 2008, and it issued a notice of this decision that same month, informing the Veteran that it made the reduction effective May 1, 2008. Thus, the notification complied with 38 C.F.R. § 3.105(e). Having determined that the RO followed the proper procedures for rating reductions as required by 38 C.F.R. § 3.105(e), the Board must now determine whether the evidence of record supports this reduction. The Board concludes that it does. By way of background, the Veteran was originally awarded service connection for NHL in an October 2005 rating decision. He was assigned a 100 percent rating, effective May 27, 2005. In November 2006, VA notified the Veteran that he would be scheduled for a VA examination to determine the current severity of his NHL. The Veteran cancelled his appointment in December 2006 as he was undergoing current treatment for his NHL. That same month, the RO sent the Veteran a letter requesting that he submit any outstanding evidence related to his current treatment for NHL. In a private treatment record dated in December 2006, the Veteran's treating physician noted that he was supposed to see him one year ago, but the Veteran never kept his follow-up appointment. The physician indicated that the Veteran had his last PET scan in December 2005 and there was no evidence of recurrence. He indicated that the Veteran is currently doing "very well and without any issues." In April 2007, the Veteran submitted a statement to VA indicating that he was undergoing radiation treatment to prevent the lymphoma from spreading. He indicated that this procedure does not guarantee that he will not have a recurrence of lymphoma or other types of cancer. The Board notes, that the clinical evidence of record does not show any radiation therapy for his NHL. Private treatment records dated in January 2007 show the Veteran with a history of stage IV NHL with extensive skeletal, retroperitoneal, and splenic involvement. The treating professional indicated that the Veteran's NHL had a very favorable response to chemotherapy with a December 2005 PET/CT scan showing no evidence of an active tumor. His last chemotherapy session was in August 2005. During this January 2007 treatment, the Veteran underwent another PET/CT scan, which revealed no evidence of hypermetabolic active lymphoma. The nuclear medicine professional considered the Veteran to have a stable scan since December 2005. In May 2007, the Veteran was scheduled for another VA fee-basis examination (QTC) to determine the current severity of his NHL. He failed to appear to the examination. The Veteran underwent another private follow-up in May 2007, at which time his physician noted that the Veteran was without recurrence of his NHL. He reported that he was doing well. The Veteran was scheduled for another VA fee-basis examination (QTC) in January 2008, and he cancelled it stating he would go to VA for his examinations. In January 2009, the Veteran underwent a CT scan of the abdomen and pelvis. The physician found no evidence of gross adenopathy to suggest recurrence of lymphoma. She observed some tiny lymph nodes in the paracaval and paraaortic locations, but they are considered normal in size for CT purposes. She indicated that further evaluation with MRI would be helpful to characterize the two tiny lesions in the liver and the sclerotic lesions in the lumbar spine. CT scan of the thorax was unremarkable, and CT scan of the cervical spine identified no soft tissues masses, but showed osteoarthritic changes. Following the Board's July 2012 remand, the Veteran was scheduled for a VA examination regarding his NHL. In short, the examiner found that the status of the Veteran's NHL is in remission. In so concluding, the examiner described the Veteran's NHL history (onset in December 2004) with a diagnosis of stage IV NHL with large cell lymphoma and evidence of MALToma. At that time he was seeing Dr. S. He underwent and completed chemotherapy in 2005. In 2006, his PET scan was read as within normal limits. PET scan in January 2007 was also negative for lymphoma. The Veteran underwent another PET scan in August 2009 at the DC VA Medical Center, which was read as negative for lymphoma. The Veteran has not returned to his Dr. S. since 2008. The Veteran described his residuals of NHL as not feeling comfortable in walking and trouble bending down. He has denied any infections and has not seen his primary care physician since 2005. He was seen by VA oncology in September 2009, at which time he was found to be in remission based in part to his negative PET scan. He has not returned to the VA Medical Center for treatment since that time. The examiner indicated that the Veteran did not require continuous medication for control of his hematologic/lymphatic condition. The examiner noted that he had completed treatment and was currently in "watchful waiting status." The examiner indicated that the Veteran has anemia, but that it is not due to his hematologic/lymphatic condition. Further, the examiner found no evidence of any findings, signs, or symptoms due to his hematologic/lymphatic condition or its treatment. Additionally, there was no findings of recurring infections, polycythemia vera, or sickle cell anemia. The examiner found no evidence of scars or any other pertinent physical findings, complications, conditions, signs, or symptoms. MRI in February 2009 revealed some small, scattered hepatic lesions, without change compared to the August 2008 CT scan that were probably small simple cysts (too small to accurately characterize). There was an abnormal signal at L3 suspicious for metastatic disease versus an atypical hemangioma. A correlation with a PET scan was recommended. Following the PET/CT scan, it was found to be compatible with atypical hemangioma suggested by the MRI. There was no evidence of lymphoma or neoplasm as they were ruled out. The examining personnel found no FDG (fluorine-18) accumulation seen in the Veteran's scanned body. The examiner opined that the Veteran's hematologic/lymphatic condition does not impact his ability to work. Following examination and interview of the Veteran, the examiner's impression was history of NHL, status-post treatment with CHOP in 2005. He opined that there was no recurrence of the disease and the spinal lesion was likely a hemangioma, not a PET avid. The examiner indicated that he was unable to review the Veteran's old records as the Veteran would not sign the release of information form. Another VA examiner provided an opinion that the Veteran is currently in remission, and although he has not complied with the advice for follow-up, there is no evidence to show a recurrence of his NHL. She indicated that there is no evidence of a residual disability, and he is essentially asymptomatic. In addition, she found no obvious or persistent adverse effects from his chemotherapy treatment in 2005. He is currently seeking part-time employment. This examiner based her opinion that the Veteran is in remission because of the normal PET scans in 2006, 2007, and 2009. It is important to note that, in addition to the relevant medical findings, the reduction was based upon the applicable rating criteria. The Veteran's NHL is rated under Diagnostic Code 7715, under which a total (100 percent) evaluation is warranted with active disease of during a treatment phase. 38 C.F.R. § 4.117, Diagnostic Code 7715. The note accompanying this diagnostic code further instructs: 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. Having reviewed the record, the Board agrees with the RO's decision to reduce the disability rating assigned for the Veteran's NHL. With respect to the NHL, the objective evidence of record indicates a material improvement in the Veteran's condition. Although the Veteran's evaluation under Diagnostic Code 7715 was temporary, in that it was reduced after his cancer went in to remission, it was not originally granted as a temporary total disability evaluation based on surgery or convalescence. Compare 38 C.F.R. § 4.117, Diagnostic Code 7715 with 38 C.F.R. § 4.30. As such, consideration under 38 C.F.R. § 4.30 of the propriety of the discontinuance of the total evaluation is not appropriate. Thus, the Board will again address the propriety of the reduction under 38 C.F.R. § 3.105(e). Again, the Veteran's original 100 percent evaluation was in effect for just under 3 years from May 27, 2005, to the proposed reduction date of May 1, 2008. Therefore, as noted above, the stabilization provisions of 38 C.F.R. § 3.344, which attach to ratings that have been in effect for 5 years or more, do not apply. Indeed, 38 C.F.R. § 3.344(c) expressly notes that conditions deemed likely to improve are outside the scope of that code section. The Veteran's NHL has been identified as such a condition likely to improve. The Veteran last received treatment for his NHL in August 2005, far more than six months prior to the discontinuance of his 100 percent rating on May 1, 2008. A VA lymphatic disorders examination in August 2012 found the Veteran's lymphoma to be in remission. VA and private treatment records dated prior to August 2012 likewise found no evidence of a recurrence of his lymphoma. Therefore, under Diagnostic Code 7715, a total disability evaluation is no longer warranted. 38 C.F.R. § 4.117. The Board appreciates the Veteran's assertions that his history of a cancer diagnosis should be enough to warrant compensation, and additionally that he has some symptoms that "may" be indicative of recurrence of cancer in other patients. The Board finds that the Veteran has not submitted any law or regulation to support his contention that he warrants a compensable rating for his NHL in remission. His liver and spine lesions have not been found to be lymphomas or cancerous in nature. In fact, his liver lesions were described as small cysts and his lumbar spine lesion was found to be a hemangioma. Additionally, there are no clinical records that support an objective finding of any additional disabilities as a result of his NHL-including his claimed odd-shaped collar bone. The Board is sympathetic to the Veteran's situation, but the evidence of record simply does not support a compensable rating for his history of NHL. For the foregoing reasons, then, the reduction of the 100 percent rating under Diagnostic Code 7715 is found to have been proper. It is important to note that Diagnostic Code 7715 leaves the door open for future ratings for any recurrence, residuals, or metastasis in the future. ORDER The 100 percent schedular rating for non-Hodgkin's lymphoma right orbital region was properly reduced, effective May 1, 2008, and the claim for restoration is therefore denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs