Citation Nr: 18146996 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 17-48 701 DATE: November 2, 2018 ORDER The reduction of the 100 percent disability rating to 0 percent for Non-Hodgkin's Lymphoma (NHL) effective September 1, 2016 was proper; restoration of the 100 percent rating for NHL is denied. FINDINGS OF FACT 1. A July 2016 rating decision reduced the rating for service-connected NHL from 100 percent to 0 percent, effective September 1, 2016. 2. As of September 1, 2016, the 100 percent disability rating for NHL had been in effect for more than five years. 3. At the time of the rating reduction, NHL was inactive with no treatment since 2013. CONCLUSION OF LAW The rating reduction for NHL was proper, and restoration of a 100 percent disability rating, effective from September 1, 2016, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.117, Diagnostic Code (DC) 7715. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service in the U.S. Army from February 1970 to March 1972 and from June 1972 to May 1990. This matter is on appeal from the June 2016 rating decision. Rating Reduction Criteria and Restoration Analysis In September 2015, the RO proposed to reduce the 100 percent rating for the service-connected NHL to 0 percent. The reduction was implemented in a June 2016 rating decision, effective from September 1, 2016. The Board finds that the RO complied with the procedural safeguards regarding the notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. At the time the reduction became effective, September 1, 2016, the 100 percent rating for NHL had been continuously in effect for more than five years. A rating reduction is not proper unless a veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). A veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, NHL was rated under the criteria found at 38 C.F.R § 4.117, DC 7715. Under 38 C.F.R. § 4.117, Diagnostic Code 7715, for NHL, a 100 percent rating is assigned for active disease or during a treatment phase. A note after this code provides that, following the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in rating 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 reoccurrence or metastasis, the disability is to be rated on residuals. Id. In this case, the Board finds that sustained improvement of the NHL has been demonstrated, and that the sustained improvement will be maintained under the ordinary conditions of life and work; therefore, the rating reduction was proper, and the criteria for restoration of a 100 percent rating for NHL, effective September 1, 2016, have not been met. Historically, in the October 2012 rating decision, the RO granted service connection for NHL with a 100 percent rating under DC 7715 effective from August 26, 2011 based on evidence showing malignant NHL and then-current treatment with antineoplastic chemotherapy, so that a 100 percent schedular rating under DC 7715 was warranted. At the time of the rating reduction, the evidence showed that the criteria for a noncompensable rating under DC 7715 were met. At the July 2015 VA examination, which was performed more than six months after the last cancer treatment, NHL was in remission after antineoplastic chemotherapy treatment was last received in October 2011 and other treatment was completed in October 2013. Because NHL was inactive with no local recurrence or metastasis, the AOJ assigned a 0 percent schedular disability rating under DC 7715 at the time of the rating reduction decision. Moreover, although not relied upon to justify the rating reduction, there is post-reduction evidence consistent with finding that a sustained improvement of NHL was demonstrated, including under the ordinary conditions of life and work. The post-reduction lay and medical evidence shows NHL in remission with no active disease or treatment since 2013, so that the criteria for a 0 percent rating under DC 7715 are met, and sustained improvement of NHL demonstrated under the ordinary conditions of life and work. See, e.g., November 2017 VA primary care initial evaluation note (noting NHL in remission); January 2016 Notice of Disagreement (acknowledging that cancer was in remission). At the time of the rating reduction, NHL was in remission, and the 0 percent rating criteria under DC 7715 for NHL were met. The rating criteria for NHL specifically direct VA to rate on residuals when NHL is not manifested by active disease or during a treatment phase. Because the evidence does not demonstrate any active disease or treatment for NHL since 2013, NHL is appropriately rated at 0 percent under DC 7715. NHL residual conditions of chronic fatigue syndrome and asthma are separately rated at 20 percent under the criteria at 38 C.F.R. § 4.88a, DC 6354 (chronic fatigue syndrome) and 10 percent under the criteria at the criteria at 38 C.F.R. § 4.97, DC 6602 (bronchial asthma), respectively. The rating reduction for NHL in this case was procedural in nature and by operation of law. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (where the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code involved contained a temporal element for that 100 percent rating). (Continued on the next page)   For the foregoing reasons, the Board finds that the preponderance of the evidence demonstrates sustained improvement of the NHL so as to warrant a rating reduction from 100 percent to 0 percent effective from September 1, 2016; therefore, the reduction was proper, and restoration of the 100 percent rating is not warranted. 38 C.F.R. § 3.105(e). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel