Citation Nr: 1802779	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  12-17 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to restoration of a 100 percent evaluation for post middle lung lobectomy with lower lobe wedge resection for bronchoalveolar carcinoma.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel



INTRODUCTION

The Veteran served on active duty from May 1969 to December 1971 in the United States Army. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

The June 2012 Statement of the Case characterized the issue on appeal as an increased rating claim.  However, the Veteran is appealing a decision that reduced the rating for his service-connected lung disability from 100 to 10 percent, rather than a decision that denied an increased rating.  Therefore, the Board has recharacterized the issue accordingly.


FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, the evidence of record at the time his disability rating was reduced from 100 to 10 percent did not demonstrate sustained improvement in his ability to function under the ordinary conditions of life and work. 


CONCLUSION OF LAW

The criteria for restoration of a 100 percent rating for post middle lung lobectomy with lower lobe wedge resection for bronchoalveolar carcinoma, are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.96, 4.96, Diagnostic Code 6819-6844 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines.  The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction.  The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing.  Then a rating action will be taken to effectuate the reduction.  38 C.F.R. § 3.105(e).  The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires.  38 C.F.R. § 3.105(e), (i)(2)(i).

In this case, the Veteran was notified of the proposed reduction for his service-connected lung disability in May 2011.  He was notified of all the material facts and reasons.  He was also notified that he could submit additional evidence and that he had the right to predetermination hearing.  The Veteran submitted additional evidence, which was considered by the RO.  In a November 2011 rating decision, the RO effectuated the reduction effective February 1, 2012.  Therefore, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) were met.  

A Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C. § 1155.  In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

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 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).  

The Veteran's service-connected lung disability has been evaluated under Diagnostic Code 6819-6844.   Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2017). 

Under Diagnostic Code 6819, a 100 percent rating is warranted for malignant neoplasms of the respiratory system.  The 100 percent rating shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure.  Six months after the discontinuance of that treatment, the appropriate disability rating is determined by mandatory VA examination.  If there has been no local recurrence or metastases, the rating is based on residuals.  38 C.F.R. § 4.97, Diagnostic Code 6819.

In this case, the Veteran was diagnosed with mucinous bronchioalveolar carcinoma after undergoing bronchoscopy, exploratory right thoracotomy with right lower lobe wedge resection, and right middle lobe lobectomy in March 2008.  He underwent chemotherapy; however, CT scans in 2009 were suggestive of progression and recurrence of the disease.  In June 2010, he underwent a redo right thoracotomy with right lower lobectomy.  Follow-up records indicate that he was treated for empyema.  In December 2010, his private physician indicated that he was doing extremely well, was finally over his empyema, and was back to almost full activity.  

As noted above, the residuals of the Veteran's lung cancer have been evaluated under Diagnostic Code 6844.  Diagnostic Code 6844 provides that post-surgical residuals of lobectomy will be rated under the General Rating Formula for Restrictive Lung Diseases. 

The General Formula provides for ratings from 10 to 100 percent based primarily on the results of pulmonary function tests (PFTs), specifically, Forced Expiratory Volume in one second (FEV-1), Forced Vital Capacity (FVC), and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). 

A 10 percent rating will be assigned where there is FEV-1 of 71- to 80-percent predicted, or FEV-1/FVC of 71 to 80 percent, or DLCO (SB) of 66- to 80-percent predicted. 

A 30 percent rating is assigned for FEV-1 measured at 56 to 70 percent of predicted value; or FEV-1/FVC of 56 to 70 percent of predicted value; or, DLCO (SB) measured at 56-65 percent of predicted value.  Id. 

A 60 percent rating is assigned for FEV-1 measured at 40-55 percent of predicted value, or FEV-1/FVC of 40-55 percent; or, DLCO (SB) measured at 40-55 percent of predicted value; or maximum oxygen consumption of 15- 20 ml/kg/min with cardiorespiratory limitation.  Id.

The maximum 100 percent rating is assigned for FVC measured at less than 40 percent of that predicted; or DLCO (SB) measured at less than 40 percent predicted; or maximum exercise capacity is less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation; or cor pulmonale or pulmonary hypertension; or requires outpatient oxygen therapy.  Id. 

In March 2010, the RO granted the Veteran's claim for service connection for stage 4 bronco-alveolar carcinoma and assigned an initial 100 percent evaluation effective August 31, 2009.  In a November 2011 rating decision, the RO reduced the evaluation to 10 percent effective February 1, 2012.  In reducing the Veteran's disability rating, the RO relied primarily on the findings of the April 2011 and September 2011 VA examinations, which included PFTs showing FEV-1 and FEV-1/FVC findings consistent with a 10 percent evaluation.  

The Board notes, however, that neither the April 2011 nor the September 2011 VA PFTs included DLCO (SB) testing.  Under 38 C.F.R. § 4.96(d)(2), if the DLCO (SB) test is not of record, the disability is evaluated based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case.  In this case, however, the VA examiners did not explain why the DCLO (SB) test was nor performed or why the test would not be useful or valid.  Therefore, the Board finds that the VA examinations are inadequate and cannot serve as a basis for determining that an improvement in the disability actually occurred.  

Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board finds that the rating reduction was improper, and the 100 percent rating is therefore restored for the entirety of the appellate period.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102.  See also 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 421.


ORDER

Restoration of a 100 percent disability rating for post middle lung lobectomy with lower lobe wedge resection for bronchoalveolar carcinoma, is granted.




____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs