Citation Nr: 18159932 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-60 829 DATE: December 21, 2018 ORDER The reduction from 100 percent to 0 percent for lung cancer status post-surgical resection effective January 1, 2015 was proper and restoration is denied. The propriety of the reduction from 10 percent to 0 percent for right leg scar effective January 1, 2015 is deemed not proper and restoration is warranted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. In a May 2014 rating decision, the RO proposed to reduce the disability evaluation for the Veteran’s service-connected residuals lung cancer from 100 percent to a noncompensable rating; the RO promulgated that proposed reduction in an October 2014 rating decision, and the Veteran’s evaluation was decreased to non-compensable effective January 1, 2015. The 100 percent rating had been in effect for less than five years. 2. The Veteran’s lung cancer has neither recurred nor metastasized since resection of the nodules in 2011. 3. The weight of the evidence reflects that the pulmonary function test findings are consistent with the criteria for a noncompensable rating. 4. In an October 2014 rating decision, the RO reduced the rating for the Veteran’s service-connected painful right thigh scar from 10 to 0 percent disabling from January 1, 2015. The 10 percent rating had been in effect for less than five years. 5. Improvement of the Veteran’s painful right leg scar to include under conditions of ordinary life is not shown by a preponderance of the evidence. CONCLUSIONS OF LAW 1. The reduction in rating for residuals of lung cancer status post resection from 100 percent to noncompensable, effective January 1, 2015, was proper and restoration is denied. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 4.97, Diagnostic Codes 6819, 6844. 2. The reduction in the rating assigned for a painful scalp scar from 0 to 10 percent, effective January 1, 2015, was not proper; restoration of the 10 percent rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1970. Reductions To properly reduce a disability rating requires VA to meet both procedural and substantive requirements. Procedurally, where the reduction in the rating 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 will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. The veteran must also be informed that he may request a predetermination hearing prior to the reduction. § 3.105(e)(i)(1). Following this 60-day period, a 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 beneficiary of the final rating action expires. Id. The RO satisfied these procedural requirements by issuing a May 2014 rating decision and notice letter. The Veteran was informed of the proposed reduction and all material facts and reasons for it. The notice further informed the Veteran of his right to submit additional evidence on this matter and request a personal hearing. Thereafter, an October 2014 rating decision effectuated the reduction of the lung cancer disability from 100 to 0 percent, and the reduction of the right leg scar from 10 percent to 0 percent, and assigned an effective date of January 1, 2015. Thus, the RO satisfied the requirements by allowing at least a 60-day period to expire before assigning the effective date of the reduction. Reducing a rating also brings concurrent substantive requirements that must be followed. 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). 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; Brown v. Brown, 5 Vet. App. 213, 413, 420 (1993). In addition, 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; however, as the Veteran’s 100 percent disability rating for his lung disability and 10 percent rating for his right leg scare were in effect since 2011, those additional requirements are not applicable. See 38 C.F.R. § 3.344. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. 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. 38 C.F.R. §§ 4.2, 4.10, 4.13; Faust v. West, 13 Vet. App. 342, 350 (2000). Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). 1. The propriety of the reduction from 100 percent to 0 percent for lung cancer post-surgical resection effective January 1, 2015. The Veteran disputes the reduction in the assigned disability rating for his status-post lung cancer from 100 percent to 0 percent, effective January 1, 2015. The Veteran’s lung cancer disability was service-connected in a February 2012 rating decision and rated at 100 percent under Diagnostic Code 6819 (malignant neoplasms of any specified part of the respiratory system). 38 C.F.R. § 4.97, Diagnostic Code 6819. Under Diagnostic Code 6819, a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such 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. A reduction in rating for lung cancer after cessation of treatment is subject to the provisions of § 3.105(e). 38 C.F.R. § 4.97, Diagnostic 6819, Note. Private treatment records show that a left lung mass was detected by chest x-ray in 2011 as lung nodules, and metastatic high grade undeferential pleomorphic sarcoma was confirmed through pathology in October 2011. The nodules were resected shortly thereafter. The Veteran was afforded a VA examination for his lung cancer and right leg scar in May 2014. The examination report shows that the Veteran reported no hospitalizations or ER visits in the last 12 months due to the lung cancer condition or right thigh scar. The examiner reported that the Veteran was not taking any medications to address any lung cancer residuals or right thigh scar. The Veteran reported that since the resections of the lung masses he had not received any further interventions or oncologic treatments. Regular follow ups with his physicians showed no re-incidence of the tumor, nor new lesions identified. The Veteran did report he felt short of breath upon exertion or activities. The examiner noted that a pulmonary function test performed in May 2014 was normal for spirometry, lung volumes, and DLCO. The respiratory section of the VA examination report showed that the Veteran was not taking medications or treatments for any respiratory conditions. Regarding the malignant neoplasm, the examiner noted that treatment was completed and the Veteran was currently in watchful waiting status post lung mass resection. The examiner reported that the Veteran did not have any residual conditions or complications due to the neoplasm or its treatments, other than those already document. Chest X-ray and CT scan completed in 2013 showed no acute pathology or findings to suggest recurrent or metastatic sarcoma. PFT testing showed the Veteran had a post bronchodilator force vital capacity (FVC) of 96 percent predicted, forced expiratory volume for one second (FEV-1) of 89 percent predicted, and FEV-1/FVC ratio of 73 percent. His diffusing capacity for carbon monoxide (DLCO) was 99 percent. The examiner reported that the respiratory condition did not impact the Veteran’s ability to work, and that there were no residuals or functions limitations post soft tissues sarcoma with metastatic lesions to lung. The examiner also found that the Veteran’s FVC percentage of 96 percent of predicted most accurately reflected the Veteran’s level of disability. After a review of the evidence of record the Board finds that recurrence or metastasis of the Veteran’s lung cancer is not indicated anywhere in the record, including the more recent VA treatment records. As such, the disability must be rated on residuals by an appropriate respiratory analogy. In sum, the Veteran has not asserted, and the evidence does not show, that he received any surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures for treatment of his service-connected residuals of lung cancer status post lobectomy after the October 2011 surgical treatments. The VA examination conducted more than six months after cessation of lung cancer treatment found no malignancy, recurrence, or active cancer. Thus, effective January 1, 2015, the RO appropriately discontinued the 100 percent rating, and rated the Veteran on the basis of the residuals of lung cancer status resection, as directed by 38 C.F.R. § 4.97, Diagnostic Code 6819. The legal authority governing the assignment of a 100 percent rating under Diagnostic Code 6819 is clear and specific, and the Board is bound by such authority. Here, the Veteran did not receive any treatment specifically for lung cancer status resection or its residuals following the October 2011 surgical treatment and he was afforded a VA examination in May 2014 to assess and properly rate the residuals of the cancer. As such, the RO properly discontinued the 100 percent rating, effective January 1, 2015. Once it was determined that a 100 percent rating was no longer warranted, the issue became what the appropriate rating was that should be assigned. As explained above, the rating was based on the criteria laid out in 38 C.F.R. § 4.97, which in this case supported the noncompensable rating the Veteran was assigned under Diagnostic Code 6844-6833. Diagnostic Code 6833 provides: A 100 percent rating is assigned for Forced Vital Capacity (FVC) less than 50-percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. A 60 percent rating is assigned for FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 30 percent rating is assigned for FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. A 10 percent rating is assigned for FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66- to 80-percent predicted. Diagnostic Code 6844 provides that post-surgical residuals will be rated under the general rating formula for restrictive lung diseases. This formula provides the following criteria: a 100 percent disability rating for findings that show Forced Expiratory Volume in one second (FEV-1) less than 40 percent of predicted value, or; the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by Single Breath Method (DLCO SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6844. A 60 percent disability rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV- 1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio-respiratory limit). A 30 percent disability rating is assigned for FEV-1 of 56- to 70- percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 10 percent rating is assigned for FEV-1 of 71- to 80-percent predicted value, or; the ratio of FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) is 66- to 80-percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6844. Respiratory disorders rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. Rather, a single rating will be assigned under the code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (a). Pulmonary function tests (PFTs) are required to evaluate respiratory conditions except in certain situations. When the PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96 (d)(3). To that end, PFTs of May 2014 indicate FEV-1 of 96-percent of the predicted value, FVC of 96 percent of predicted, FEV-1/FVC of 89-percent, and DLCO of 99-percent of the predicted value. Thus, the findings are consistent with the criteria for the current assigned non-compensable rating under Diagnostic Code 6844-6833. Looking at Diagnostic Code 6833, the Veteran’s FVC and DLCO exceeded 80 percent of predicted. As such, a compensable rating is not warranted under that Diagnostic Code. Under Diagnostic Code 6844, the Veteran’s FEV-1 and DLCO, exceeded 80-percent predicted. While the ratio of FEV-1/FVC of was between 71 to 80 percent, the examiner specifically indicated that the FVC was the most accurate representation of the Veteran’s disability, and VA regulations provide that when there is a disparity between the results of different PFT’s FEV–1, FVC, etc., so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. When that is done here, the evidence of record supports the assignment of a noncompensable rating. Although the Veteran asserts that his symptoms are more severe than reflected by the current assigned noncompensable rating, the Board finds that the competent medical evidence shows that the Veteran’s symptoms are more appropriately contemplated by the criteria for the current assigned noncompensable rating. There is no medical evidence that the Veteran has any residuals from his lung cancer status post resections. Thus, the Board finds that the weight of the evidence is against the assignment of an evaluation in excess of 0 percent since January 1, 2015. The claim must therefore be denied. 2. The propriety of the reduction from 10 percent to 0 percent for right leg scar, effective January 1, 2015. The Veteran disputes the reduction in the assigned disability rating for right thigh scar from 10 percent to 0 percent, effective January 1, 2015. The Veteran’s right thigh scar was service-connected in a September 2011 rating decision and rated at 10 percent effective October 17, 2011 under Diagnostic Code 7804 (painful scars) 38 C.F.R. §§ 4.20, 4.27, 4.118, Diagnostic Code 7804. This rating was based upon an August 2011 VA examination report that showed the scar was tender. A May 2014 VA examination report regarding the scar of the right thigh noted that the surgical incision was well-healed. The examiner noted that the scar was not painful, or with frequent loss of covering of the skin. The scars were not both painful and unstable. The examiner noted that the scar was located on the right lower extremity on the lateral posterior aspect of thigh. The scar was 22 centimeters in length. The examiner reported that the scar did not impact the Veteran ability to work and he had no other functional limitations related to the scar. In a July 2014 statement submitted by the Veteran, he reported that his right thigh scar caused discomfort with walking, standing, and sitting, and riding long distances. A February 2016 VA treatment record shows that the Veteran was provided gel to treat pain that was caused by his right thigh scar. A July 2017 VA examination report showed that the Veteran’s right thigh scar was not painful or unstable. The scar was noted to be 30 centimeters by.5 centimeters. After a review of the evidence, the Board finds that the examination reports of record did not show an improvement in the Veteran’s ability to function under the ordinary conditions of life and work as a result of the scar on his right leg. In this regard, there is no evidence that the scar reduced substantially in size. Furthermore, the Veteran has reported that he has continued to experience pain from the scar and has been prescribed gel for the symptoms. The Board acknowledges that the VA examiners indicated that the Veteran’s scar was not painful. However, the Board finds that Veteran is competent to describe the symptoms of his scar, including pain, and finds that his statements are credible. Therefore, the Board finds that the reduction is void ab initio and restoration of the 10 percent rating is warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel