Citation Nr: 1319094 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 11-24 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether the reduction of the evaluation of the Veteran's service-connected non-Hodgkin's lymphoma from 100 percent to 10 percent, effective November 1, 2010, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from December 2009 to July 2012. In the July 2012 Supplemental Statement of the Case, the RO specifically stated that the Veteran's VA treatment records from December 2009 to July 2012 were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. In August 2012, the Veteran submitted a statement expressing disagreement with the rating decision on appeal and private medical records consisting of blood test results from a private health care provider. The blood tests covered a period from January 2012 to August 2012. They were not accompanied by a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2012). However, there is no prejudice to the Veteran in the Board's adjudication of his claim because in considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, which in this case was in August 2010. 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 a September 1993 rating decision, the RO granted service connection for non-Hodgkin's lymphoma and assigned a 100 percent disability evaluation, effective August 9, 1993. 2. The 100 percent evaluation for non-Hodgkin's lymphoma was in effect from August 9, 1993 to November 1, 2010, a period of more than five years. 3. In a December 2009 rating decision, the RO proposed a reduction in the rating for the Veteran's service-connected non-Hodgkin's lymphoma from 100 percent to noncompensable. After the proposed reduction, the Veteran was given 60 days to present additional evidence and was notified at his address of record. 4. In an August 2010 rating decision (final reduction), the RO reduced the 100 percent rating for non-Hodgkin's lymphoma to 10 percent, effective November 1, 2010, in accordance with the criteria set forth in Diagnostic Code 7715. 5. The VA examination upon which the reduction was based was as full and complete as previous examinations. 6. Based on the record, the Veteran last received treatment for non-Hodgkin's lymphoma in April 2006; there is no evidence showing current active disease. CONCLUSION OF LAW The reduction from 100 to 10 percent was made in compliance with applicable due process laws and regulations; was supported by the evidence contained in the record at the time of the reduction; the reduction in disability for non-Hodgkin's lymphoma from 100 percent to 10 percent, effective November 1, 2010, was proper and in accordance with the law; the criteria for restoration of a 100 percent rating have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.105(e), 3.344(a), (b), 4.117, Diagnostic Code 7715 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duties to notify and assist do not apply where the issue is a reduction in rating. The VCAA duties are only triggered by the receipt of a new "application" or claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b), (c). In the case of a reduction, there has been no application or claim, so the VCAA is inapplicable. However, there are specific particularized notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the claimant in a reduction case are set forth under 38 C.F.R. § 3.105(e), and are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). These specific notice requirements take precedence over the more general notice requirements found in the VCAA. The U.S. Court of Appeals for Veterans Claims (Court) has referred to "the canon of interpretation that the more specific trumps the general." See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one . . . .") (quoting Busic v. United States, 446 U.S. 398, 406 (1980)); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-7 (2005). As discussed in detail below, the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) governing rating reductions were explained to the Veteran in adequate detail in a December 2009 proposed reduction letter and rating decision prior to the August 2010 final rating reduction. The Veteran was provided sufficient opportunity to present additional argument and evidence in opposition to the reduction. Therefore, consideration of the propriety of the rating reduction for his residuals of non-Hodgkin's lymphoma proceeds to the merits of whether reduction in the rating was appropriate. Reduction of Rating for non-Hodgkin's Lymphoma A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155 (West 2002). Prior to reducing a Veteran's 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. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2012); 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 is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. It is essential both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Procedurally, where a reduction in an 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 must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, 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 Veteran expires. 38 C.F.R. § 3.105(e). As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections set forth in 38 C.F.R. § 3.344(a) and (b). In this case, the 100 percent rating for non-Hodgkin's lymphoma was effective from August 9, 1993 and has therefore been in effect for more than 5 years. Where a Veteran's schedular rating has been both stable and continuous for five years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. Moreover, though material improvement in the mental or physical 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. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); Brown, 5 Vet. App. at 420-421. Where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. In fact, the Court has consistently held that when VA reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In a September 1993 rating decision, the RO granted service connection for non-Hodgkin's lymphoma and assigned a 100 percent evaluation, effective August 9, 1993. Initially, the Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). Specifically, in the December 2009 notice letter and rating decision, the RO complied with these procedural requirements. The Veteran was given 60 days to present additional evidence and was notified at his address of record. He did not request a predetermination hearing. The Veteran was informed that the reason the RO proposed to reduce his rating from 100 percent to noncompensable was because his condition had improved. In the accompanying December 2009 rating decision, the RO proposed to reduce the Veteran's disability evaluation for non-Hodgkin's lymphoma from 100 percent to noncompensable. The final reduction was implemented in an August 2010 rating decision, except that a 10 percent evaluation was assigned instead of a noncompensable evaluation. The effective date of the reduction, November 1, 2010, was effective the last day of the month after expiration of the 60-day period from the date of notice of the August 2010 final rating action, as set forth in the applicable VA regulation. See 38 C.F.R. § 3.105(e). Thus, all procedural requirements were met. Upon review of the entire record, the evidence supports the reduction of the Veteran's disability rating from 100 to 10 percent for non-Hodgkin's lymphoma effective November 1, 2010. The reduction was proper for the reasons discussed below. Non-Hodgkin's lymphoma is evaluated under Diagnostic Code 7715. 38 C.F.R. § 4.118. Diagnostic Code 7715 specifies that non-Hodgkin's lymphoma be rated at 100 percent when active or during a treatment phase. Id. The 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after the discontinuance of treatment, the appropriate disability evaluation shall be determined by a mandatory VA examination. Any change in the evaluation based upon that or any subsequent VA examination is subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, the disability is to be rated on its residuals. 38 C.F.R. § 4.117, Diagnostic Code 7715, Note (2012). The main evidentiary basis for the reduction was the VA examination conducted in November 2009. This examination was as "full and complete" as the previous VA examination conducted in September 1995. See 38 C.F.R. § 3.344(a). The September 1995 VA examination was not the basis for the original assignment of a 100 percent evaluation. In August 1993, the RO granted service connection for non-Hodgkin's lymphoma based upon private medical evidence. The September 1995 VA examination was conducted in conjunction with an October 1995 rating decision that continued the 100 percent evaluation. The November 2009 VA examination was adequate for rating purposes. It was based upon an interview with the Veteran, as well as objective clinical examinations. The examiner noted the Veteran's subjective complaints and reviewed all pertinent medical records. In addition, the VA examination reflected sustained, material improvement of the non-Hodgkin's lymphoma, reasonably certain to continue under the ordinary conditions of life. See 38 C.F.R. § 3.344(a); Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993). The detailed discussion below supports this conclusion. At his November 2009 examination, the examiner noted that the onset of the Veteran's non-Hodgkin's lymphoma was 1993. His condition was currently stable and he was not undergoing treatment. The Veteran reported fatigue, malaise, and weakness. He did not have enlarged lymph nodes. The examiner noted that the Veteran was "suspected" to have myelodisplastic syndrome, but he refused a bone marrow biopsy or aspiration to confirm. He was diagnosed with non-Hodgkin's lymphoma (low grade follicular and diffuse large cell), in remission. The examiner determined that the occupational impact of the condition was memory loss, lack of stamina, fatigue or weakness, and decreased strength in the upper and lower extremities. The examiner concluded that there was no impact on the Veteran's activities of daily living. In a December 2009 supplemental opinion, the examiner reiterated that the Veteran currently had no diagnosed condition or residuals associated with non-Hodgkin's lymphoma. Further, the condition was in remission and the examiner emphasized that the Veteran had not had treatment since April 2006. Although the RO proposed to reduce the Veteran's disability evaluation to noncompensable, the August 2010 rating decision evaluated the residuals of the Veteran's non-Hodgkin's lymphoma as 10 percent disabling because he took continuous medication. Other VA treatment records note that the Veteran had active non-Hodgkin's lymphoma and underwent a bone marrow transplant in 1996. His disease recurred in 2006 and he received weekly chemotherapy for four weeks, ending in April 2006. A September 2006 private CT scan of the Veteran's abdomen indicated no recurrence or metastatic disease. Because the VA examination and medical evidence of record at the time of the reduction show that the Veteran did not have active disease and had completed treatment more than six months prior, a 100 percent evaluation for non-Hodgkin's lymphoma is not warranted. 38 C.F.R. § 4.117. As noted above, the RO assigned a 10 percent evaluation for residuals of non-Hodgkin's lymphoma based on the fact that the Veteran takes continuous medication (monthly B12 injections) for control of his anemia. The VA examiner noted in her December 2009 supplemental opinion that the Veteran had no diagnosable condition or residuals associated with non-Hodgkin's lymphoma, which was in remission. There is no evidence to show that the Veteran's anemia is a residual of non-Hodgkin's lymphoma. Even if it were, his disability picture from anemia does not more closely approximate the criteria for a higher evaluation. Aplastic anemia is evaluated under Diagnostic Code 7716, these are the criteria used by the RO. Under Diagnostic Code 7716, a 10 percent evaluation is warranted when the condition requires continuous medication for control. A 30 percent evaluation is warranted when the condition requires a transfusion of platelets or red cells at least once per year but less than once every three months, or; infections recurring at least once a year but less than once every three months. 38 C.F.R. § 4.117, Diagnostic Code 7716. There is no evidence of record showing that the Veteran has had a transfusion of platelets or red cells, or had an infection due to his anemia. Therefore a higher evaluation would not be warranted. The Veteran asserts that his blood tests show that his hemoglobin is low. He believes this is a residual of non-Hodgkin's lymphoma. The Veteran is competent to read the results of his blood tests, which contain notations of what results are considered abnormal. Layno v. Brown, 6 Vet. App. 465 (1994). Further, to the extent that he believes his low hemoglobin levels are related to his non-Hodgkin's lymphoma, his statement is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether a low hemoglobin count is caused by residuals of non-Hodgkin's lymphoma or its treatment, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). His assertion is not probative. Even if the Veteran's low hemoglobin count was considered a residual of non-Hodgkin's lymphoma, his disability picture from that condition would not more closely approximate the criteria for a higher evaluation. Anemia (hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) is evaluated under Diagnostic Code 7700, which provides a noncompensable rating for an asymptomatic condition with a hemoglobin count of 10 gm/100 ml or less. A 10 percent evaluation is warranted when there is a hemoglobin count of 10 gm/100 ml or less with findings of weakness, easy fatigability, or headaches. A 30 percent evaluation is warranted when there is a hemoglobin count of 8 gm/100 ml or less, with findings of weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. 38 C.F.R. § 4.117, Diagnostic Code 7700. At the time of the reduction in rating, the evidence of record showed that the Veteran's hemoglobin count was, at lowest, 10.7 g/dL in September 2008. His hemoglobin count did not drop below 8 gm /100 ml until July 2012, when it was 7.9 g/dL. Therefore, a 30 percent evaluation under Diagnostic Code 7700 was not warranted. The Veteran reported fatigue, malaise, and weakness at his November 2009 examination. The examiner noted that the occupational impact of his non-Hodgkin's lymphoma consisted of memory loss, lack of stamina, weakness or fatigue, and decreased extremity strength. However, the examiner also concluded that the Veteran's condition had no impact on his usual daily activities. Further, in a December 2009 supplemental opinion, the examiner revised her conclusion and stated that the Veteran had no diagnosed condition or residuals associated with non-Hodgkin's lymphoma, which was in remission. Even if the Veteran's fatigue was a residual of non-Hodgkin's lymphoma, his disability picture does not meet the criteria for a 20 percent rating for chronic fatigue syndrome, which requires that the condition be nearly constant and restrict routine daily activities by less than 25 percent of pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. 38 C.F.R. § 4.88b, Diagnostic Code 6354. There is no evidence of record to show that the Veteran's fatigue is incapacitating for any period of time, and there is no evidence that his fatigue restricts his daily activities. To the contrary, the VA examiner found that his usual daily activities were not impacted. Although the examiner noted that memory loss was a residual, she revised her opinion in December 2009. Even if the Veteran did have memory loss as a residual of non-Hodgkin's lymphoma, the evidence does not show that his disability picture meets the criteria for a 20 percent evaluation under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran does not have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. In sum, the preponderance of the evidence demonstrates that the reduction in rating from 100 to 10 percent for the Veteran's non-Hodgkin's lymphoma was proper and in accordance with Diagnostic Code 7715, which requires that it be based upon an examination. The Veteran underwent one in November 2009. Further, his residuals were then rated. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(e), 4.117, Diagnostic Code 7715 (2012); Kitchens, 7 Vet. App. at 325. Restoration of a 100 percent rating is therefore denied. ORDER Reduction of the disability rating for non-Hodgkin's lymphoma from 100 to 10 percent, effective November 1, 2010, was proper; therefore, restoration of a 100 percent rating is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs