Citation Nr: 1328874	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  12-10 356	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE
 
Whether the reduction in the disability rating for renal cell carcinoma, status-post ablation of a left kidney tumor from 100 to 60 percent was proper.  

 
REPRESENTATION
 
Appellant represented by:  Disabled American Veterans
 
 
ATTORNEY FOR THE BOARD
 
A. Barner, Associate Counsel
 


 

INTRODUCTION
 
The Veteran performed confirmed active duty service from August 1944 to December 1946 and from May 1954 to October 1969.  He retired in October 1969 with more than 20 years of active duty service. 
 
This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 
 
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 December 2007 rating decision VA granted entitlement to service connection for kidney cancer, and assigned a 100 percent rating under Diagnostic Code 7528, effective March 30, 2007.
 
2.  Following examination in December 2007, in May 2008 the RO proposed to reduce the 100 percent rating for renal cell carcinoma status-post left kidney ablation to a noncompensable rate. 
 
3.  In a July 2010 rating decision, the RO reduced the disability evaluation for the Veteran's renal cell carcinoma status-post ablation of a left kidney tumor to a 60 percent evaluation, effective December 1, 2010, according to a later corrective letter.
 
4.  The RO's decision to reduce the evaluation for renal cell carcinoma status-post ablation of a left kidney tumor to a 60 percent evaluation was supported by the evidence contained in the record at the time of the reduction and the reduction was in compliance with applicable due process laws and regulations.  The evidence does not show active renal cell cancer
 
CONCLUSION OF LAW
 
The July 2010 decision, which reduced the disability rating for renal cell carcinoma status-post ablation of a left kidney tumor from 100 percent to 60 percent, was proper.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.7, 4.10, 4.100, 4.115a, 4.115b, Diagnostic Code 7528 (2012).  
 
 
REASONS AND BASES FOR FINDINGS AND CONCLUSION
 
Duties to Notify and Assist
 
Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
 
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  
 
Where the RO proposes to reduce a currently assigned evaluation 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).  The beneficiary will be notified of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence.  38 C.F.R. § 3.105(e).  The beneficiary must also be notified that he has an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days.  38 C.F.R. § 3.105(i).  Unless a hearing is requested, if additional evidence is not received within the 60-day period, 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.  38 C.F.R. § 3.105(e).
 
Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
 
VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The May 2008 rating decision and the accompanying letter provided the required notice regarding the proposed reduction.  The Veteran did not request a hearing.  Furthermore, the Veteran has been represented by a certified veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has either been satisfied or any deficiency has caused no prejudice to the Veteran.
 
VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records, VA medical records, and identified private medical records are associated with the record.  VA provided the Veteran a medical examination in December 2007.  The examination is adequate because it contains a history obtained from the Veteran and a thorough examination relevant to the applicable rating criteria.  There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.
 
Rating Reduction
 
The circumstances under which rating reductions can occur are limited.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  In any rating reduction case it must be ascertained, based upon a review of the entire recorded history of the disorder, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.  Brown v. Brown, 5 Vet. App. 413, 420 (1993).  The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence.  Kitchens v. Brown, 7 Vet. App. 320 (1995).
 
The provisions of 38 C.F.R. § 3.105 apply to reductions and provide that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons.  The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level.  If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced 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.
 
Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice.  The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction.  See Brown, 5 Vet. App. at 418.
 
With regard to the reduction of the rating assigned for renal cell carcinoma, status-post left kidney ablation, to 60 percent, effective December 2010, the RO procedurally complied with 38 C.F.R. § 3.105 regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction.  In a May 2008 letter, the Veteran was notified of the proposed reduction in his disability rating for renal cell carcinoma status-post left kidney ablation.
 
The May 2008 letter included a copy of the May 2008 rating decision proposing the reduction, it informed the Veteran that he could submit additional evidence to show that the compensation payments should be continued at the then-current levels, and advised that if no additional evidence was received within 60 days, his disability evaluation would be reduced.  The appellant was advised of his right to request a personal hearing.
 
The next question is whether the reduction was proper based on the evidence of record.  Where a disability evaluation has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c).  Here, the Veteran's 100 percent disability rating was awarded effective March 30, 2007, and was reduced effective December 1, 2010, less than five years later.  Accordingly, 38 C.F.R. § 3.344(c) does not apply as the procedural safeguards set forth in 38 C.F.R. § 3.344(a) and (b) are not applicable to ratings which have been in effect for less than five years.  See Lehman v. Derwinski, 1 Vet. App. 339 (1991).
 
Unlike the requirements for a reduction in the evaluation for disabilities in effect for five years or more which require evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, disabilities that are likely to improve, namely those for which evaluations have been in effect for less than five years, warrant a reduction when an adequate re-examination discloses improvement in the condition.  See 38 C.F.R. § 3.344(c).
 
There are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more.  Brown, 5 Vet. App. at 420-421.  Specifically, VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history.  Furthermore, VA regulation 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.  Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work.  Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10.  A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim.  Brown, 5 Vet. App. at 421.
 
Here, the Board finds that a preponderance of the evidence weighs against the claim.  Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
 
In this case, the Board preliminarily notes that the applicable diagnostic code is 38 C.F.R. § 4.115b, Diagnostic Code 7528.  Under that Diagnostic Code, following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months.  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 as voiding dysfunction or renal dysfunction, whichever is predominant.
 
Under 38 C.F.R. § 4.115a, diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these.  The following section provides descriptions of various levels of disability in each of these symptom areas.  Where diagnostic codes refer the decision maker to these specific areas of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes.  Since the areas of dysfunction described below do not cover all symptoms resulting from genitourinary diseases, specific diagnoses may include a description of symptoms assigned to that diagnosis.
 
In cases of renal dysfunction, a 60 percent evaluation is in order for constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under Diagnostic Code 7101.  An 80 percent evaluation is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) of 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.  A 100 percent evaluation contemplates cases requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular.  
 
Cases of voiding dysfunction are rated as either urinary frequency, or obstructed voiding.  With continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a maximum 60 percent evaluation contemplates the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  There is no basis for a 60 percent evaluation or higher predicated on urinary frequency or obstructed voiding.
 
If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  Using the same symptoms to evaluate two separate disabilities is pyramiding and is prohibited by 38 C.F.R. § 4.14. 
 
By way of background, a December 2007 rating decision granted entitlement to service connection for kidney cancer, now classified as renal cell carcinoma status-post left kidney ablation, and assigned a 100 percent rating, effective March 30, 2007.  That rating was assigned "during active malignancy or atineoplastic therapy."  The medical evidence at the time included a magnetic resonance imaging showing a left renal mass suspicious for renal cell carcinoma that had grown since 2004.  Treatment records showed that in January 2007 the Veteran underwent left laparoscopic cryotherapy of a left renal mass in response to his left renal cell carcinoma.  
 
A December 2007 VA examination report revealed among other things that the Veteran's current urinary symptoms included a weak or intermittent stream, nocturia at least three times per night, and voiding frequency of every three hours.  The Veteran denied experiencing urinary leakage, dysuria, hematuria, or urinary retention.  Examination revealed no abdominal or flank tenderness.  There were normal bladder and urethra examinations.  There was no renal dysfunction or failure.  There were no cardiovascular symptoms.  Labwork revealed a BUN of 18, creatinine of 1.5, and albumin of 3.8.  The examiner noted the Veteran was free of residuals and his cancer was in remission.  A urinalysis revealed normal findings, and renal functions were normal.  The examiner noted no significant occupational effects, or effects on daily living.  
 
While the Board is aware that the VA examiner did not review the claims file, such a review is not required in all cases.  Whether an examination report is adequate for rating purposes will generally depend upon the facts of the particular case and, specifically, upon the nature of the information needed to adjudicate the claim.  Where the necessary evidence to be developed through examination is limited to matters which do not implicate the claimant's prior medical history, the examiner will not need to review the prior medical records in order to provide the required evaluation.  See VAOPGCPREC 20-95 (July 14, 1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).
 
In the present case, the examiner was provided an accurate history of the Veteran's kidney cancer.  There is no indication that the examination findings were predicated on any historically inaccurate information.  As such, a claims file review was not required in this case.  See Snuffer v. Gober, 10 Vet. App. 400, 404 (1997).
 
The rating reduction for renal cell carcinoma was proposed in a May 2008 rating decision and implemented in July 2010.  In September 2010 the effective date was corrected to reflect December 1, 2010.  
 
May 2008 notice for reduction indicated that the Veteran had 60 days to submit evidence that reduction was not warranted, that he was entitled to a personal hearing if he so chose, and that a VA examination would be scheduled.  In the accompanying May 2008 rating decision, the RO proposed to reduce the disability for renal cell carcinoma from 100 percent to a noncompensable rate.  The RO observed that the Veteran's prostate cancer residuals were also evaluated under the genitourinary criteria, and indicated that a separate evaluation could not be assigned for renal cell carcinoma using the same symptoms, because pyramiding was prohibited.   See 38 C.F.R. § 4.14 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993) (A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity.")  
 
In the July 2010 rating decision, the RO reduced the disability rating for renal cell carcinoma status-post left kidney ablation from 100 percent to 60 percent, effective October 1, 2010.  In September 2010 a correction letter indicated that the accompanying July 2010 letter was written as a proposal when it should have reflected implementation of a reduction, such that the effective date would be changed to December 1, 2010.  The reduction was based on review of VA treatment records revealing that the Veteran's cancer remained in remission.  As such, the RO indicated that VA regulations required the condition be rated based on residuals of voiding dysfunction or renal dysfunction, whichever was predominant.  The RO observed that the Veteran was already rated for voiding dysfunction from residuals of prostate cancer, and as such determined to rate according to renal dysfunction.  VA treatment records were noted to show creatinine levels from 1.5 to 1.9 since November 2007, indicative of kidney dysfunction, such that a 60 percent rating was assigned.  
 
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).
 
Since the rating reduction, a March 2011 VA examination indicated that the Veteran experienced systemic symptoms from genitourinary disease to include fatigue and weakness, but to exclude anorexia.  Urinary symptoms included a daytime voiding frequency of less than an hour, and nocturia with four voidings nightly.  Creatinine was 1.7, and BUN was 19.  Symptoms were attributed to the Veteran's prostate and kidney cancer.  Although kidney cancer with stent placement was considered likely to prevent physical labor (albeit not sedentary labor), the Board observes that the stent was placed in the right renal artery, and the benign oncocytoma of the right kidney is not service connected.
 
The Board finds that the reduction was proper.  At the time of the May 2008 proposal, at the time of the July 2010 reduction, and currently, there was no evidence of local reoccurrence or metastasis due to kidney cancer.  38 C.F.R. § 4.115a.  The Veteran's residuals thus must be evaluated based on voiding dysfunction, or renal dysfunction or urinary tract infections; and here, as discussed above they were evaluated based on renal dysfunction so as to avoid pyramiding with his evaluation for prostate cancer.  38 C.F.R. §§ 4.115a, 4.115b.  

At the time of the proposal to reduce the evaluation, there was no indication that the Veteran required regular dialysis or was precluded from sedentary activity due to persistent edema and albuminaria, or BUN more than 80mg% or markedly decreased function of kidney or other organ systems, especially cardiovascular, such that a rating reduction was proper.  The evidence preponderated against finding persistent edema and albuminaria such that an 80 percent rating would be warranted.
 
The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes.  For example, the appellant cannot state what his BUN level is.
 
The entirety of the competent probative evidence is against a finding that there has been a recurrence of the cancer.  The reduction from 100 percent to 60 percent was warranted based on adequate VA examination of the Veteran, medical history provided by the appellant, physical examination of the claimant, and the objective results of laboratory testing.  38 C.F.R. § 3.344(c).

In reaching this decision the Board considered the doctrine of reasonable doubt, but as the evidence preponderates against the claim, the doctrine is not for application.  38 U.S.C.A. § 5107.  


ORDER
 
The reduction in the disability rating for renal cell carcinoma status-post left kidney ablation from 100 percent to 60 percent was proper; the appeal is denied.
 


____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs