Citation Nr: 21001656 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 20-14 700 DATE: January 11, 2021 ORDER The reduction of a separate, compensable rating for kidney stones was not proper; restoration of the 10 percent rating is granted effective January 1, 2019. An earlier effective date prior to January 6, 2009, for the grant of service connection for MDD is denied. An earlier effective date prior to July 1, 2013, for the grant of service connection for headaches is denied. Entitlement to a total rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for headaches is remanded. Entitlement to a rating in excess of 30 percent prior to February 7, 2020, and in excess of 50 percent thereafter for major depressive disorder (MDD) is remanded. Entitlement to a rating in excess of 60 percent for renal cell carcinoma (excluding the period of a temporary total rating from November 16, 2017 to November 30, 2018) is remanded. FINDINGS OF FACT 1. An October 2018 rating decision reduced and combined the Veteran’s kidney stone disability with his service-connected renal cell carcinoma effective January 1, 2019. 2. The Veteran’s 10 percent disability rating for kidney stones had been in effect for more than five years. 3. The Veteran’s kidney stones did not show actual improvement under the normal circumstances of life and work. 4. In an unappealed January 1985 decision, the Board denied the claim for service connection for a psychiatric disorder. 5. The earliest document in the claims file that may be accepted as a claim to reopen service connection for a psychiatric disorder was received by VA on January 6, 2009. 6. The earliest document in the claims file that may be accepted as a claim for service connection for a headache disability was received by VA on July 1, 2013. 7. The Veteran’s service-connected disabilities (to include MDD and headaches) precluded all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction of a separate, compensable rating for kidney stones was not proper; restoration of the 10 percent rating is granted effective January 1, 2019. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for an effective date prior to January 6, 2009, for the grant of service connection for MDD are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a); 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an effective date prior to July 1, 2013, for the grant of service connection for headaches are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a); 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to November 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Further, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran’s representative has indicated that the Veteran’s disabilities have resulted in the Veteran’s inability to obtain or maintain substantially gainful employment. In light of the Court’s holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claims and has accordingly listed the raised TDIU claim as an issue on appeal. Propriety of Rating Reduction for Kidney Stones—Laws and Analysis 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 implement 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 Board finds that all notification and due process requirements provided under 38 C.F.R. § 3.105 (e) have been met. See September 2017 rating action proposing the reduction and October 2018 rating decision implementing the reduction. Regulations “impose a clear requirement that VA rating reductions...be based upon a review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was implemented, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Board notes that a separate 10 percent rating for kidney stones had been in effect since 2008; a period of more than five years. Consequently, this rating could not be reduced without compliance with the provisions of 38 C.F.R. §§ 3.344 (a) and (b) regarding stabilization of ratings. See 38 C.F.R. § 3.344 (c); Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b). In this case, the reduction was proposed based on an August 2015 VA examination report, which indicated that the Veteran did not have recurrent kidney stones. VA further determined that the Veteran had his left kidney removed and had not had any stones in the right kidney. The evidence includes a February 2020 VA kidney examination report. At that time, the Veteran was noted to have “recurrent right kidney stones with treatment.” The examiner also indicated that after his left nephrectomy, the Veteran did not have issues with passing renal stones “until after he had a cold ablation at Froedtert in 2018 for a new mass noted on his right kidney” (emphasis added). The February 2020 VA examiner specifically found that the Veteran had recurrent stone formation in the kidney 0-1 times per year. The Board finds that, although the Veteran’s left kidney stones may have subsided due to removal of the left kidney, the medical evidence shows recurrent kidney stones (now on the right side). As such, the Board finds that VA has not met its burden of establishing that the disability has improved. For these reasons, the Board finds that the evidence shows that the reduction was not proper and that restoration of a separate 10 percent rating for kidney stones is warranted effective January 1, 2019. Earlier Effective Date Claims—Laws and Analysis The effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii), (r). The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). MDD Disability In January 1985, the Board denied the claim for service connection for a psychiatric disorder. The Veteran was provided notice of the decision and of his appellate rights, but he did not perfect a timely appeal. Therefore, the January 1985 Board decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. A claim to reopen service connection for a psychiatric disorder was subsequently filed on January 6, 2009. A December 2016 rating decision granted service connection MDD and assigned an effective date of January 6, 2009. As noted above, the Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). Therefore, the earliest effective date for the grant of entitlement to service connection for a psychiatric disorder can be no earlier than the Veteran’s claim to reopen, which was January 6, 2009. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran after the January 1985 Board decision indicates an attempt to reopen his claim for service connection for a psychiatric disorder. However, the Board finds that no other correspondence or communication received by VA before January 6, 2009 can be reasonably construed as an intent to file a formal or informal claim to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder. The Veteran has not identified any document in the claims file that he contends is a pre-January 2009 claim to reopen. The Board observes that the laws and regulations governing effective dates are clear. The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii), (r). In this case, VA received the Veteran’s claim on January 6, 2009. The record contains no statement or communication from the Veteran prior to that date that could reasonably constitute a pending claim to reopen service connection for a psychiatric disorder. Based on the facts in this case, there is no legal basis for an effective date prior to January 6, 2009, for the award of service connection for a psychiatric disorder. Because the RO did not receive a formal or informal application for to reopen a claim of service connection for a psychiatric disorder prior to January 6, 2009, VA is precluded, as a matter of law, from granting an effective date prior to that date. As such, this appeal must be denied because the agency of original jurisdiction (AOJ) has already assigned the earliest possible effective date provided by law. As the preponderance of the evidence is against this claim, under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Headache Disability The Veteran is also challenging the effective date assigned for his headache disability. A December 2016 rating decision granted service connection for headaches and assigned an effective date of July 1, 2013, the date of the Veteran’s claim for service connection for headaches. The Veteran asserts that he is entitled to an earlier effective date since he was granted non-service connected pension for headaches effective July 25, 2006 in a January 2007 rating decision. The record indicates the Veteran filed a claim for non-service-connected pension in July 2006. In his July 2006 Application for Compensation or Pension (VA Form 21-526), he claimed disability only for mental confusion. There are no affirmative notations on the July 2006 claim form suggesting the Veteran sought service connection for headaches. In a January 2007 rating decision, the RO awarded non service-connected pension for various disabilities demonstrated in his medical records, including headaches. The RO notified the Veteran by letter dated February 15, 2007. He did not file a timely Notice of Disagreement (NOD) and accordingly the January 2007 decision became final. It was not until July 1, 2013 when VA received the Veteran’s formal claim for service connection for headache. The Veteran contends he is entitled to an earlier effective date based on his July 2006 claim for non service-connected pension. The Board has examined the record but finds no basis for granting an earlier effective date. The Veteran did not seek service connection for headaches until July 2013, and the January 2007 rating decision addressing non service-connected pension is final. Therefore, the appeal as to an earlier effective date is denied. TDIU—Laws and Analysis A total disability rating for compensation based on TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Here, the Veteran’s service-connected disabilities (MDD, headaches, and renal cell carcinoma) result in, at least, a 70 percent combined disability rating since January 6, 2009. As such, the Veteran meets the rating percentage standards for TDIU under 38 C.F.R. § 4.16 (a). Upon review of all the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. The evidence of record demonstrates that the Veteran last worked in 2006. The Veteran’s formal TDIU application indicates that he completed two years of college and completed the police academy. The Veteran indicated that his MDD, headaches, and renal cancer disabilities prevented him from securing or following any substantially gainful occupation. The evidence includes a February 2020 VA psychiatric examination. At that time, the Veteran estimated that he would struggle with work due to interactions with others. Further, the Veteran endorsed having “regular headaches,” which were noted to make maintaining a job difficult. In a February 2020 VA headache examination report, the examiner indicated that the Veteran’s headaches would impact his ability to work in that the Veteran would need to rest “at least once a day” in a quiet, dark room. A September 2016 VA headaches examination noted that the Veteran had “constant” head pain with nausea, and sensitivity to light and sound. VA treatment records show complaints by the Veteran of “severe” headaches with associated dizziness and some vision loss. See e. g., May 2019 VA treatment record. Social Security Administration disability records include an October 2006 psychological report. At that time, it was opined that the Veteran would have problems responding appropriately to supervisors and co-workers because of a current preference to solitude. Maintaining concentration and attention would also prove problematic because of issues with pain. Based on the foregoing, and with resolution of all reasonable doubt in favor of the Veteran, a TDIU is warranted as the evidence suggests that the Veteran is unable to secure or maintain a substantially gainful occupation due to his service-connected disabilities. As noted above, the Veteran has been found to have difficulties with concentration and attention. Further, the Veteran’s headaches would require the Veteran to take daily breaks in a quiet and dark room, which the Board finds unlikely to be available in most occupational environments. The Board finds that these restrictions would significantly limit the Veteran’s ability to perform any occupational task. As such, the Board resolves doubt in the Veteran’s favor in finding that he is unable to obtain or maintain substantially gainful employment consistent with his educational and work background. Therefore, the Veteran’s TDIU claim is granted. 38 C.F.R. § 4.16. REASONS FOR REMAND Rating for MDD The Veteran is currently in receipt of a 70 percent rating for his MDD disability from January 6, 2009 to July 1, 2014. Beginning July 2, 2014, he is in receipt of a 30 percent rating. He was subsequently assigned a 50 percent evaluation beginning February 7, 2020. In his December 2017 Notice of Disagreement (NOD), the Veteran disagreed with the reduction from 70 percent to 30 percent beginning July 2, 2014. Accordingly, the Board will consider whether a rating in excess of 30 percent is warranted from July 2, 2014 to February 6, 2020, and in excess of 50 percent beginning February 7, 2020. In February 2020, the RO promulgated a Statement of the Case (SOC) concerning the issues on appeal, including the Veteran’s claim for an increased rating for MDD Since that date, additional relevant VA Medical Center treatment records were associated with the claims file. However, no Supplemental SOC (SSOC) has been promulgated to address the additional evidence. An SSOC is a document prepared by the AOJ to inform the Veteran of any material changes in, or additions to, the information included in the Statement of the Case or any prior SSOCs. 38 C.F.R. § 19.31. Although initial AOJ review is automatically waived for evidence submitted by the Veteran because his VA Form 9 is dated after February 2, 2013, the automatic waiver does not apply to VA-generated evidence. 38 U.S.C. § 7105 (e). Waiver of an SSOC is applicable only to evidence submitted by the Veteran. 38 C.F.R. § 20.1304. As the additional medical records are VA-generated, the claim must be remanded so that the AOJ can issue an SSOC addressing the additional VA-generated evidence. See 38 C.F.R. §§ 19.31, 19.37. Rating for Headache Disability In a December 2016 rating decision, the RO granted service connection for headaches and assigned a noncompensable rating effective July 1, 2013. In December 2017, the Veteran filed a Notice of Disagreement (NOD) and specifically indicated that he was in disagreement with both the rating and effective date assigned for his headache disability. In a February 2020 rating decision, the rating was increased to 30 percent effective the date of service connection. The Veteran did not express satisfaction with the increased rating assigned. Indeed, a rating decision issued subsequent to a NOD that grants less than the maximum available rating does not “abrogate the pending appeal.” AB v. Brown, 6 Vet. App. 35, 38 (1993). Notably, the February 2020 SOC addressed the effective date assigned for the Veteran’s headache disability, but did not readjudicate the claim for a higher disability rating. Accordingly, a Statement of the Case must be sent to the Veteran on this issue. See Manlincon v. West, 12 Vet. App. 238 (1999). Rating for Renal Cell Carcinoma By way of procedural background, a February 2013 rating decision granted service connection for renal cell carcinoma (RCC). Thereafter, a May 2017 rating decision severed service connection for RCC effective August 1, 2017. A subsequent September 2017 rating decision reinstated service connection and assigned a 30 percent rating effective August 1, 2017. In September 2018, the Veteran filed a NOD as to the rating assigned for the RCC disability. To date, a SOC has not been issued regarding the Veteran’s claim for a higher rating for RCC. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that the Veteran was recently assigned a 60 percent rating for his RCC throughout the entire rating period on appeal (excluding the period of a temporary total rating from November 16, 2017 to November 30, 2018). Although a higher rating was granted, the issue remains in appellate status as the RO did not assign the maximum schedular rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also DC 7528 (allowing for 80 or 100 percent rating for renal dysfunction associated with residuals of malignant neoplasms of the genitourinary system). Accordingly, a Statement of the Case must be sent to the Veteran on this issue. See Manlincon, 12 Vet. App. 238. The matters are REMANDED for the following actions: (Continued on the next page)   1. Issue a Statement of the Case (SOC) on the following issues: (i) entitlement to an initial rating in excess of 30 percent for the headache disability; and (ii) entitlement to a rating in excess of 60 percent for renal cell carcinoma (excluding the period of a temporary total rating from November 16, 2017 to November 30, 2018). Only if the Veteran perfects an appeal should the claim be certified to the Board. 2. Readjudicate the claim of entitlement to an increased rating for MDD. If any benefit is not granted to the Veteran's satisfaction, a supplemental statement of the case (SSOC) should be provided to the Veteran, and after he has had an adequate opportunity to respond, this case should be returned to the Board in accordance with current appellate procedures. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.