Citation Nr: 1604862 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 14-21 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as depression. 2. Entitlement to service connection for obstructive lung disease, claimed as bronchitis. 3. Entitlement to a rating higher than 20 percent for bilateral hearing loss. 4. Whether the reduction from a 30 percent rating to a 10 percent rating for the Veteran's service-connected restrictive lung disease, effective October 1, 2012, was proper. 5. Entitlement to a disability rating in excess of 10 percent for restrictive lung disease. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: J. Michael Wood, Attorney at Law ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in July and October 2012 by the Nashville, Tennessee, Regional Office (RO) of the Department of Veteran's Affairs (VA). The Board has assumed jurisdiction of the Veteran's claim seeking a TDIU as part and parcel of the increased rating claim on appeal, per Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In December 2015, the Veteran motioned to have his case expedited based on financial hardship. The Board hereby grants the motion and this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The decision below addresses the reduction issue. The remaining claims are addressed in the remand following the decision. FINDINGS OF FACT 1. In May 2011, the Veteran filed a claim seeking an increased rating for his restrictive lung disease, and in a September 2011 rating decision (accompanied by a September 2011 notice of the Veteran's procedural rights), the RO proposed reducing the Veteran's disability evaluation from 30 percent to 10 percent, given evidence of sustained improvement. 2. In June 2012, the Veteran participated in his requested personal hearing regarding this proposed rating reduction. 3. In July 2012 rating decision, the RO implemented the proposed reduction, effective as of October 1, 2012. 4. At the time of the reduction of the Veteran's benefits, his 30 percent disability ratings for his service-connected restrictive lung disease had been in effect for less than five years. 5. At the time of the reduction of the Veteran's benefits, the evidence reflected that the Veteran was entitled to no more than a 10 percent rating for his service-connected restrictive lung disease under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction from 30 percent to a 10 rating for service-connected restrictive lung disease, effective October 1, 2012, was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.97, Diagnostic Code 6843 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION By way of background, the Veteran was awarded service connection for restrictive lung disease, the residual disability resulting from his in-service spontaneous right pneumothorax, in a September 2007 rating decision. The RO assigned an initial 10 percent rating effective from December 2006. In a September 2008 rating decision, the RO increased the rating to 60 percent, but in a January 2010 rating decision, the RO decreased the rating from 60 percent to 30 percent, stating that this rating reduction would become effective on May 1, 2010. In February 2010, before the rating reduction was effective, the Veteran reported that he would be submitting new evidence relevant to this rating reduction, thereby tolling the finality of the January 2010 rating decision. In May 2010, this new evidence, namely March 2010 VA respiratory treatment records, were associated with the record. In a May 2010 rating decision, the RO reevaluated the Veteran's reduced rating of 30 percent based on the Veteran's newly submitted evidence and continued the Veteran's 30 percent rating for restrictive lung disease, noting that recent findings only supported a 10 percent rating, but determining that sustained improvement in his service-connected disability has not yet been demonstrated. In May 2011, more than one year after the Veteran was notified of the May 2010 rating decision, the Veteran filed the increased rating claim from which the instant appeal stems. In response to this increased rating claim, the RO proposed reducing the Veteran's disability evaluation from 30 percent to 10 percent, given evidence of sustained improvement, as reflected in a September 2011 rating decision, which was accompanied by a September 2011 notice of the Veteran's procedural rights. The Veteran requested to participate in a related personal hearing, which was conducted in June 2012, and in July 2012 rating decision, the RO implemented the proposed reduction, effective as of October 1, 2012. Rating Reductions 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 (West 2014). 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). Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c) (2015). In making this determination, VA is required to comply with several 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 (2015); Brown v. Brown, 5 Vet. App. at 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. See 38 C.F.R. § 3.344(a), (b). 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); Brown, 5 Vet. App. at 420-21. 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 veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The veteran must be allowed an opportunity to participate in a personal hearing, with the request received within 30 days of the notice provided, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e), (i). After the allotted period, if no additional evidence has been submitted, final rating action will be taken, and the rating 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 expires. 38 C.F.R. § 3.105(e). Analysis Turning first to the procedural requirements for proposing and implementing rating reductions, the RO proposed reducing the Veteran's rating for restrictive lung disease from 30 to 10 percent in a September 2011 rating decision, which included detailed reasons for the proposed reduction and which was accompanied by a September 2011 notice of the Veteran's procedural rights. The Veteran was specifically advised of his right to participate in a personal hearing, and the Veteran requested such a hearing, which was conducted in June 2012. The RO then scheduled another VA respiratory examination for July 2012. After determining that the evidence presented in this hearing and other medical evidence of record failed to demonstrate that the Veteran's 30 percent evaluation should be continued, the RO issued a July 2012 rating decision implementing the proposed reduction, which became effective as of October 1, 2012. Thus, the reduction was implemented more than 60 days after the proposal to reduce benefits and after the Veteran participated in his requested personal hearing. Accordingly, the Board concludes that the RO followed proper procedure when proposing and implementing the rating reduction; the rating reduction is not void ab initio, and the Board may proceed to analyze the merits of the claim. See 38 C.F.R. § 3.105(e). Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). Pursuant to the rating criteria for restrictive lung disease, which is outlined in Diagnostic Code 6843, ratings are assigned based on pulmonary function testing results. A 10 percent rating is warranted when Forced Expiratory Volume in one second (FEV-1) is 71 to 80 percent predicted, or FEV-1 to Forced Vital Capacity (FEV-1/FVC) is 71 to 80 percent predicted, or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath (DLCO (SB)) is 66 to 80 percent predicted. A 30 percent rating is warranted when the FEV-1 is 56 to 70 percent of the predicted value, or the FEV-1 to FVC ratio is 56 to 70 percent, or the DLCO is 56 to 65 percent of the predicted value. The next higher rating of 60 percent for requires an FEV-1 of 40 to 55 percent predicted; an FEV-1/FVC ratio of 40 to 55 percent predicted; or a DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). See 38 C.F.R. § 4.97, Diagnostic Code 6843 (2015). The evidence of record in September 2011 (at the time of the proposed reduction) reflected that the Veteran had consistently demonstrated pulmonary functioning testing results commensurate with a 10 percent rating. Specifically, March 2010 pulmonary functioning testing results reflect that the Veteran demonstrated a FEV-1 of 76 percent of the predicted result; an FEV-1/FVC of 75 percent of the predicted result; and an DLCO(SB) of 82 percent of the predicted result. Further, May 2011 pulmonary functioning testing results reflected even further respiratory improvement, as the Veteran demonstrated a FEV-1 of 88 percent of the predicted result; an FEV-1/FVC of 76 percent of the predicted result; and an DLCO(SB) of 89 percent of the predicted result. Moreover, during pulmonary functioning testing performed in July 2012, after the proposed rating reduction in September 2011 but before the July 2012 rating decision implementing the reduction, the Veteran continued to demonstrate a respiratory impairment consistent with a 10 percent rating, with a FEV-1 of 75 percent of the predicted result; an FEV-1/FVC of 79 percent of the predicted result; and an DLCO(SB) of 95 percent of the predicted result. Given that these pulmonary function testing results, the sole objective criteria for assigning disability ratings for restrictive lung disease, reflect findings that support no more than a 10 percent rating, the Board finds that the RO's reduction of benefits was supported by the evidence of record and with multiple results reflecting this improved level of severity, the improvement was shown under the ordinary conditions of life and work. In sum, the Board finds that at the time of the July 2012 rating reduction, the preponderance of the evidence reflected that the Veteran was entitled to no more than 10 percent rating for his service-connected restrictive lung disease, such that a rating reduction from 30 percent was warranted. Further, the evidence clearly establishes that the procedures specified in 38 C.F.R. § 3.105 were followed, and that the rating reduction was supported by a preponderance of evidence, and was therefore proper. ORDER The reduction from 30 percent to a 10 rating for service-connected restrictive lung disease, effective October 1, 2012, was proper; thus, the Veteran's appeal of this issue is denied. REMAND With regard to the Veteran's claim seeking service connection for a psychiatric disorder, claimed as depression, the Veteran currently asserts that this disability is at least partly attributable to his service-connected physical disabilities. However, there is conflicting evidence of record regarding the nature of the Veteran's current psychiatric disorder and its etiology. In that regard, the Veteran's VA treatment of record, which includes psychiatric treatment from 2010 to 2014 from a Tennessee VA facility, characterizes the Veteran's psychiatric disorder as depression, not otherwise specified, and rule-out posttraumatic stress disorder (PTSD). However, these treatment records do not specifically reference the Veteran's physical disabilities as contributing to or aggravating his psychiatric state. Conversely, in the May 2015 disability benefits questionnaire completed by a private provider and submitted by the Veteran, the Veteran's psychiatric disorder is characterized as a depressive disorder due to another medical condition with mixed features. Furthermore, the private provider characterizes the Veteran's psychiatric disorder (rather confusingly) as both attributable to and aggravated by his service-connected disabilities. Given this conflicting evidence of record, and given that the Veteran has not yet been afforded a VA psychiatric examination, the Board finds that such an examination to determine the potential relationship between his service-connected disabilities and service should be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, as the 2010 psychiatric treatment from a Tennessee VA facility reflects the Veteran's report that he received prior psychiatric treatment in 2004 from a Michigan VA facility, and this 2004 treatment is not of record, these outstanding VA treatment records must be obtained. With regard to the Veteran's claim seeking service connection for an obstructive lung disease, claimed as bronchitis, the treatment of record includes two references to obstructive lung disease, namely January 2012 private treatment for an acute episode of bronchitis and 2014 VA treatment listing chronic obstructive pulmonary disease (COPD) among the Veteran's medical problems (although no specific treatment for this disease is recorded). However, when the Veteran underwent his last VA respiratory examination in October 2012, the only respiratory diagnosed was his service-connected restrictive lung disease. As it is unclear whether the Veteran does indeed currently have an obstructive lung disease, and as it is plausible that any such current obstructive lung disease could be affected and perhaps aggravated by his service-connected restrictive lung disease, a VA examination clarifying these matters is required. Regarding the Veteran's claim seeking a higher rating for his bilateral hearing loss, the Veteran was last afforded a VA examination assessing his hearing acuity in October 2012, and while subsequent VA treatment records through 2014 do not include any specific audiological treatment, the records reference the Veteran's hearing impairment as stable with hearing aids. However, the May 2015 private psychiatric assessment submitted by the Veteran reflects the Veteran's reports that his hearing impairment has recently fluctuated in intensity, with intermittent roaring feedback, requiring adjustments to his hearing aids. Given this evidence suggesting a material change in the Veteran's bilateral hearing loss since it was last assessed for VA purposes, a new VA audiological examination is required. Furthermore, the Veteran's recent, outstanding VA treatment records, which may reflect the Veteran's reported hearing aid adjustments, must be obtained. As to the Veteran's claim seeking a TDIU, the Veteran asserts that his unemployable, in part, as a result of his service-connected bilateral hearing loss. Accordingly, the Veteran should be afforded proper notice applicable to this claim, and the VA audiological examination should elicit findings relevant to his unemployability determination. Finally, the reduction of the rating for restrictive lung disease detailed above stems from a VA examination conducted in connection with the Veteran's claim for an increase. Therefore, the issue of entitlement to an increased rating remains on appeal. The propriety of a reduction is based on the evidence at the time of the reduction and there is at least an indication that the disability may have increased in severity since the most recent VA examination in July 2012. Thus, a new VA examination should be scheduled on remand to ascertain the severity level for a post-reduction rating. Accordingly, these issues are REMANDED for the following actions: 1. Provide the Veteran with a notification letter for his claim seeking entitlement to a TDIU, and request that he complete an enclosed formal TDIU application. 2. Obtain the Veteran's Michigan VA treatment records prior to April 2007 and his Tennessee VA treatment records dated from April 2014. 3. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his current psychiatric disorder. The Veteran's electronic claims file must be made available to the examiner for review. After reviewing the claims file, eliciting a history of the Veteran's psychiatric symptoms from the Veteran, and conducting a relevant clinical examination, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater) that the Veteran's psychiatric disorder is either directly related to service, caused by his service-connected disabilities (hearing loss, tinnitus, and restrictive lung disease), or is aggravated by his service-connected disabilities. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation is found, the examiner is asked to identify the baseline level of severity prior to the superimposed aggravation. When rendering these requested opinions, the examiner is to consider and comment on the clinical significance of the following evidence: * When he completed his induction medical history report in June 1965, the Veteran affirmed a history of experiencing depression and excessive worry. * In May 1967 (during service) the Veteran was treated for pruritus, and his post-service VA treatment records reflect that he has been diagnosed with a skin disorder caused by scratching his anxiety-related pruritus. * 2010 VA treatment records reflect the Veteran's psychiatric disorder as depression, NOS, and rule out PTSD, and do not specifically reference the Veteran's service-connected disabilities as causing or aggravating his psychiatric disorder. * A May 2015 DBQ form and accompanying medical opinion authored by a private provider references the Veteran's psychiatric disorder as a depressive disorder as a result of another medical condition, with mixed features. The treatment provider opines that this psychiatric disorder is both caused by and aggravated by the Veteran's service-connected lung disease, hearing loss, and tinnitus. A complete rationale must be provided for each opinion rendered. 4. Schedule the Veteran for a VA respiratory examination to determine the nature and etiology of any current obstructive lung disease. The Veteran's electronic claims file must be made available to the examiner for review. After reviewing the claims file, eliciting a history of the Veteran's respiratory symptoms from the Veteran, and conducting a relevant clinical examination, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater) that any currently-diagnosed obstructive lung disease is either directly related to service, caused by his service-connected restrictive lung disease, or is aggravated by his service-connected restrictive lung disease. The examiner is to consider and comment on the clinical significance of the Veteran's diagnosis of COPD, as referenced among his medical problems in his VA treatment records. A complete rationale must be provided for all opinions rendered. 5. Schedule the Veteran to undergo a VA audiological examination conducted by an appropriate medical professional and provide the Veteran's electronic claims file to the examiner for review. The examiner is to elicit a history of the Veteran's hearing loss symptoms and related functional impairment and conduct relevant audiological testing. Then, the examiner is to describe the occupational limitations or impairment to occupational functioning stemming from the Veteran's service-connected bilateral hearing loss and tinnitus. 6. Schedule the Veteran to undergo a VA respiratory examination conducted by an appropriate medical professional and provide the Veteran's electronic claims file to the examiner for review. The examiner is to elicit a history of the Veteran's hearing loss symptoms and related functional impairment and conduct relevant respiratory testing, including pulmonary function testing. 7. Finally, readjudicate the issues remaining on appeal, including entitlement to a TDIU. If the full benefit with regard to any claim remains denied, issue a supplemental statement of the case and return the case to the Board. . The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs