Citation Nr: 1759924 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-08 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating for Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes, rated as noncompensable from December 1, 2009 forward, to include whether the rating reduction from 100 percent to 0 percent was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from April 1999 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut, which reduced the rating assigned for the Veteran's Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes to noncompensable, effective December 1, 2009. The Board remanded this case in August 2012 and September 2015 for further development. The Veteran testified at a hearing before the undersigned in June 2012, and at a hearing before a Decision Review Officer (DRO) in September 2010. Transcripts of both hearings are of record. Service connection was granted in a February 2013 rating decision for non-migraine headaches and nasal discharge and obstruction as residuals of Rosai-Dorfman disease effective March 19, 2009, with a noncompensable rating assigned. The evaluations assigned these disabilities are not on appeal. FINDING OF FACT The Veteran's Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes is manifested by swollen lymph nodes that do not cause any functional impairment. CONCLUSION OF LAW The criteria for a compensable rating for Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes are not satisfied; the rating reduction was proper. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. § 3.102, 3.105, 3.321, 3.344, 4.3, 4.117, Diagnostic Code 7709 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Law A. Due Process for Rating Reductions Where reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. See 38 C.F.R. § 3.105(e); see also VAOPGCPREC 71-91 (Nov. 1991), see also VAOPGCPREC 29- 97 (Aug. 1997). The veteran must also be given 60 days to present additional evidence showing that compensation should be continued at the present level. See 38 C.F.R. § 3.105(e). The veteran must further be informed that he or she may request a predetermination hearing, provided that the request is received by 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 of the final rating action expires. Id. B. Criteria for Rating Reductions With respect to disabilities that are likely to improve (i.e., when the disability rating has been in effect for less than 5 years), re-examinations disclosing improvement in such disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that such improvement reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See id.; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). VA is required to establish by a preponderance of evidence that the rating reduction is warranted. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995) (holding that the burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence). A reduction in rating must be based upon review of the entire history of a veteran's disability. See Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. See Faust v. West, 13 Vet. App. 342, 349 (2000); see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). A reduced evaluation contemplates a situation where an actual change in the disability has occurred and not merely a difference in thoroughness of the examinations or in use of descriptive terms. See Brown, 5 Vet. App. at 420-21. Three questions must be addressed in determining whether a rating reduction was warranted by the evidence. Brown, 5 Vet. App. at 421. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Id. Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Id. Third, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. Importantly, the reduction of a rating must have been supported by the evidence on file at the time of the reduction, rather than only by post-reduction evidence. However, pertinent post-reduction evidence favorable to restoring the rating must also be considered and may show that the rating reduction was improper. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). C. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. 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 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the determination of a matter. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. II. Analysis The Veteran's Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes was assigned an initial rating of 100 percent from November 12, 2006 through November 30, 2009. The rating was reduced to 0 percent effective December 1, 2009. As an initial matter, the Board finds that the due process requirements for reducing the evaluation of the Veteran's Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes were satisfied. A rating decision proposing the reduction and setting for the reasons for such reduction was issued in March 2009. The Veteran was also notified of the rating reduction in a March 2009 letter. She was afforded a predetermination hearing in June 2009, and at least 60 days to submit additional information and evidence prior to the September 2009 rating decision effectuating the reduction. The Board finds that the preponderance of the evidence supports the reduction from 100 percent to 0 percent. Preliminarily, as service connection had been in effect for about three years at the time that the reduction was effectuated, the more rigorous standards for reducing a rating set forth in subsections (a) and (b) of 38 C.F.R. § 3.344 do not apply. The Veteran's Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes has been rated by analogy under Diagnostic Code (DC) 7709, which pertains to Hodgkin's disease. 38 C.F.R. § 4.117 (2017). Under DC 7709, Hodgkin's disease is rated 100 percent disabling with active disease or during a treatment phase. A 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures, and six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the condition is rated on its residuals. Id VA examination reports dated in August 2009 and October 2010 reflect the examiner's conclusion that the Veteran had active Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes in that she continued to have enlarged lymph nodes. However, there was no involvement beyond that. It did not affect her lungs, brain, or liver. A VA examination was performed by a VA physician specializing in oncology and hematology in December 2015. As part of the examination, laboratory testing of a blood sample was conducted, and a December 2015 pathology report respecting a right cervical lymph node biopsy from a private hospital was obtained and reviewed by the physician. In a January 2016 VA medical opinion, the physician concluded based on interviewing the Veteran and a review of her medical records that she did not have Rosai Dorfman Disease or sinus histiocytosis with enlarged lymph nodes, notwithstanding an initial diagnosis in July 2003. The physician noted in this regard that an October 2003 addendum to the July 2003 record reflects the conclusion that prior biopsies reviewed by pathologists indicated a benign reactive lymph node, with no evidence of sinus histiocytosis. The physician concluded that the Veteran had persistent, recurrent palpable adenopathy largely of the neck area. All pathology studies to date showed no changes of a benign reactive process and did not confirm a diagnosis of Rosai Dorfman Disease, sinus histiocytosis, with enlarged lymph nodes. It was therefore not responsible for any level of severity of enlarged and painful lymph nodes, pulmonary problems, sleep apnea, allergies, brain lesions causing seizures, abnormal motor function, enlarged liver, elevated liver function tests, abdominal pain, night sweats, fever, anemia, history of nosebleeds, severe weight fluctuations and/or loss, loss of voice, hypoxemia, and episodes of blindness. The VA examination reports consistently show that since December 2009, the Veteran's Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes has not produced any disabling manifestations. Service-connected residuals including headaches and nasal obstruction are separately rated. Their evaluation is not under appellate review. Although the March 2010 VA examiner characterized the diagnosis as "active" in that the Veteran continued to have enlarged lymph nodes, this does not in itself warrant a higher rating. The lymph nodes are not themselves shown to cause functional impairment or to be disabling. Moreover, this condition has not required any treatment since December 2009. More weight is accorded the objective findings of the VA clinicians, including the physician specializing in oncology and hematology, who have evaluated the Veteran's condition, than to her lay statements in support of this claim. In this regard, the former represent the informed conclusions of objective medical professionals based on review of the Veteran's medical history. By contrast, the Veteran is not show to possess relevant expertise in the medical field. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). While the earlier VA opinions were not rendered by specialists, the January 2016 VA opinion was rendered by a medical doctor specializing in oncology and hematology, and confirms the conclusions in the earlier reports that there are no manifestations apart from enlarged lymph nodes. The Board has considered the October 2012 VA opinion authored by a nurse practitioner finding that the Veteran's Rosai-Dorman disease caused pulmonary problems and other manifestations. This conclusion was based solely on a review of medical literature regarding Rosai-Dorman disease, as stated by the nurse practitioner, and does not take into account the Veteran's specific medical history. More weight is accorded the conclusions in the January 2016 opinion rendered by the VA physician based on the physician's greater expertise in the relevant area, and review and citation of specific clinical findings, both current and in the Veteran's past medical history, in support of the conclusion reached, as discussed above. Moreover, the January 2016 VA opinion is consistent with the conclusions in the August 2009 and October 2010 VA opinions, making the October 2012 opinion essentially an outlier. The Board also notes that the Veteran's pulmonary condition, nasal discharge and obstruction, and migraine headaches are separately rated. As discussed above, the evaluations of these disabilities are not before the Board at this time. Finally, although the January 2016 VA opinion refers to painful lymph nodes, the other VA examination reports do not show that they are painful. The September 2012 VA opinion, for example, notes that the Veteran's patent foramen ovals were asymptomatic. In sum, the preponderance of the evidence shows improvement in the Veteran's condition effective December 1, 2009, with no active process other than enlarged lymph nodes. These are not shown to cause functional impairment or disfigurement, or to affect the Veteran's ability to function under the ordinary conditions of life and work. Consequently, the criteria for a 100 percent rating under DC 7709 are not satisfied, and the rating reduction was proper. No other diagnostic code is applicable to the Veteran's Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes. As already discussed, service-connected residuals have been separately rated and are not within the scope of this appeal. The Veteran's enlarged lymph nodes are not shown to cause marked interference with employment. Therefore, extraschedular referral is not warranted. See 38 C.F.R. § 3.321(b). Because the preponderance of the evidence weighs against a compensable rating, and supports the rating reduction, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. ORDER A rating higher than 0 percent for Rosai-Dorfman disease, sinus histiocytosis with enlarged lymph nodes effective December 1, 2009 is denied; the rating reduction was proper. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs