Citation Nr: 18154394 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-02 147 DATE: November 29, 2018 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. The 60 percent rating for the residuals of thyroid cancer is restored, effective March 7, 2014. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s COPD began in service, or is related to an in-service injury, event, or disease. 2. In a March 2014 rating decision, the agency of original jurisdiction (AOJ) reduced the Veteran’s disability rating for residuals of thyroid cancer to 30 percent, effective March 7, 2014. 3. The rating reduction for the Veteran’s assigned residuals of thyroid cancer rating was not carried out in accordance with applicable procedures and is void ab initio, and was also not supported by the evidence contained in the record at the time of the reduction. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1111, 1113; 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The March 2014 rating decision that reduced the Veteran’s disability rating for his service-connected residuals of thyroid cancer was not proper and the reduction is void ab initio. As such, the previously-assigned 60 percent rating is restored, effective March 7, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to July 1972. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As the Veteran's claims for entitlement to service connection for diabetes mellitus, type II, associated peripheral neuropathy of the bilateral lower extremities, and entitlement to TDIU may be affected by the resolution of Procopio, the Board will “stay” or postpone action on these matters. Service Connection 1. COPD The Veteran contends that he is entitled to service connection for COPD. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of COPD, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran's service treatment records are negative for treatment or a diagnosis of COPD while he was in active duty service. The Veteran was first given a diagnosis of COPD in April 2005. See April 2005 VA treatment records. During a June 2012 VA examination, the Veteran reported that he smoked two packs of cigarettes a day for 40 years and still smoked one and half packs per day at the time of the exam. The examiner noted that the Veteran had been treated for a chest cold while he was in service, but not COPD. The examiner opined that the Veteran's COPD was less likely than not caused by his active duty service, and was more likely caused by the Veteran's 45 years of smoking. While the Veteran may believe his COPD is related to his service, he has not been shown to be competent to provide a nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for COPD, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 2. Reduction of Rating for Residuals of Thyroid Cancer In a November 2009 rating decision, which implemented a June 2009 Board decision, the Veteran was granted service connection for thyroid cancer with a staged rating. An initial 100 percent disability rating was assigned effective April 30, 2003, and a 60 percent rating was assigned from May 1, 2005. The 60 percent rating was assigned an effective date that was six months after the Veteran's last therapeutic treatment for thyroid cancer, and was based on the resulting hypothyroidism, which caused symptoms of fatigue, mental disturbance, weight gain, and required continuous medication. In a June 2012 rating decision, the agency of original jurisdiction (AOJ) issued a rating decision explaining that a VA examination had demonstrated some improvement in the Veteran’s disability, but because there had only been a single examination, no sustained improvement was shown. Therefore, the AOJ did not decrease the Veteran’s disability rating. Subsequently, in a March 2014 rating decision, the AOJ reduced the Veteran's disability rating from 60 percent to 30 percent, based upon the rating criteria then in effect, pursuant to 38 C.F.R. § 4.71a, DC 7914-7903 (2014). At the time, under Diagnostic Code 7903, a 30 percent disability rating was warranted for fatigability, constipation, and mental sluggishness. A 60 percent disability rating was warranted for muscular weakness, mental disturbance, and weight gain. And a 100 percent disability rating was warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 heart beats per minute), and sleepiness. The Veteran asserts that the reduction was not proper. Prior to issuing its March 2014 rating decision, the AOJ did not follow the notice procedures required by 38 C.F.R. § 3.105 (e). However, in general, VA is not obligated to provide a veteran with the notice required by 38 C.F.R. § 3.105 (e) before issuing a rating decision reducing a disability rating if the decision does not reduce the overall compensation paid to the veteran. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). At the time of the March 2014 rating decision, the Veteran was receiving compensation for a combined disability rating of 90 percent, and even after reducing the Veteran's disability rating for the residuals of thyroid cancer, his overall disability rating remained 90 percent. Thus, because the overall effect of the rating decision was that the Veteran’s combined disability compensation remained the same, the Board finds that compliance with the procedures outlined under 38 C.F.R. § 3.105 (e) was not required. See also Stelzel, 508 F.3d 1345, 1349. Nevertheless, prior to reducing a Veteran’s disability rating, 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. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to determine, 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 such 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). Moreover, in certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344 (c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Here, the 60 percent rating for residuals of thyroid cancer had been in effect since May 1, 2005; a period of more than 5 years, and the additional protections under 38 C.F.R. § 3.344 (a) and (b) are applicable. After reviewing the entire record, the Board finds that the reduction from 60 percent to 30 percent for the residuals of thyroid cancer was not proper. First, the Board finds that the March 2014 rating decision demonstrates that the AOJ essentially analyzed the rating reduction issue just as it would a claim for an increased rating. Specifically, in its analysis, the AOJ failed to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344, as well as the substantive requirements under Faust. Instead, the AOJ simply determined that the Veteran did not currently meet the requirements for a 60 percent disability rating as of March 7, 2014. Moreover, there was no discussion regarding any actual improvement of the Veteran’s disabilities since the effective date of the 60 percent disability rating. As such, given that a rating reduction appeal focuses on the propriety of the reduction, and is not the same as an increased rating issue, the rating reductions are void ab initio. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Further, the medical evidence of record at the time reflects that while the Veteran's symptoms may have changed overtime, there is no indication that his disability actually improved. VA treatment records in evidence at the time the 60 percent disability rating was assigned demonstrate that the Veteran had symptoms including generalized weakness, fatigue, difficulty swallowing food, seeing objects on walls and people talking to him that were not present in reality. See November 2004 VA treatment records. April 2005 VA treatment records show that the Veteran was positive for nausea, vomiting, abdominal pain, fever and chills, diarrhea, and weight gain. A July 2006 VA examination showed that the Veteran had continued tremor, but he had no heat intolerance, no cold intolerance, no constipation, no diarrhea, no change in hair or skin, no polydipsia, no polyuria, no polyphagia, no dysphagia, no sore throat, no headache, no chest discomfort, no dyspnea, no orthopnea, no shortness of breath, no wheezes, no cough, no cold, no nausea, no vomiting, no numbness, no tingling, he was fully oriented, and no muscle weakness was noted. A July 2008 VA examination showed that the Veteran required daily medication for hypothyroidism, was in his usual state of health since last visit, had no dysphagia, no change in his voice. The Veteran had a slight tremor with outstretched hands, but no muscle weakness, and he was fully oriented. The Veteran was afforded a periodic VA examination in April 2011. During the examination, the Veteran reported that he had no further treatment for thyroid cancer since the VA examination in July 2006. He reported taking daily medication for the resulting hypothyroidism, and denied any side effects from the medication. The Veteran reported heat intolerance. He did report that he tired easily, indicating fatigability. He reported that his weight had stabilized, and denied any symptoms due to pressure on the larynx or esophagus. The examiner found no evidence of myxedema, and the examiner’s impression was residual hypothyroidism which was stable. Finally, a March 2014 VA examiner reported that the Veteran had no thyroid scans, surgery, or treatment other than daily medication since 2011. The Veteran's weight had trended down from 220 pounds, to 202 pounds at the lowest, and had stabilized at 207 pounds. The examiner opined that the Veteran had hypothyroid endocrine dysfunction characterized by fatigability, mental sluggishness, continuous medication, and muscular weakness. However, the examiner’s opinion is somewhat contradictory. While the examiner attributed the Veteran's fatigability, mental sluggishness, and muscular weakness to his hypothyroidism, the examiner also opined that the Veteran’s feelings of malaise, fatigue, weakness, and mental sluggishness were a result of the Veteran’s age, obesity, diabetes, poor overall fitness and exercise tolerance level, for which the Veteran is not service-connected. When it is not possible to separate the effects of a service-connected condition versus a non-service-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant’s favor, thus attributing such signs and symptoms to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, resolving reasonable doubt in the Veteran's favor, while the March 2014 VA examination shows that while the Veteran's weight gain had stabilized, his symptoms still included fatigability and required continuous medication, both of which were present at the time of the assignment of the 60 percent disability, and the Veteran has also developed muscular weakness, which had not been present in prior VA examination. Thus, the evidence shows that the Veteran's condition had, at a minimum, not shown a sustained improvement. As VA has failed to meet its burden to demonstrate actual improvement of the Veteran’s residuals of thyroid cancer resulting in sustained improvement in his ability to function under the ordinary conditions of life and work, the Board finds restoration of a 60 percent disability rating is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel