Citation Nr: A21020571 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200425-99123 DATE: December 27, 2021 ORDER The reduction of the 100 percent evaluation for service-connected lung cancer residuals, status post right thoracotomy and right lower lobectomy, effective November 1, 2019, and the assignment of a 30 percent rating was proper. FINDINGS OF FACT 1. The Veteran was granted service connection for lung cancer in a November 2018 rating decision and assigned a 100 percent rating. 2. In a May 2019 examination conducted for VA purposes, more than six months after the cessation of lung cancer treatment, the Veteran's lung cancer was not shown to have recurred, but was manifested by pre-bronchodilator FVC of 64 percent predicted, FEV-1 of 67 percent predicted, and FEV-1/FVC of 103 percent, while post-bronchodilator testing showed FVC of 72 percent predicted, FEV-1 of 66 percent predicted, and FEV-1/FVC of 91 percent. 3. In June 2019, the RO notified the Veteran of a proposed rating reduction in the rating for his service-connected lung cancer, and he was provided sufficient time to present new evidence and the opportunity for a pre-decisional hearing; thereafter, his rating was reduced to 30 percent in a November 2019 rating decision. CONCLUSION OF LAW The reduction of the 100 percent rating assigned for residuals of lung cancer, status post right thoracotomy and right lower lobectomy, to 30 percent effective November 1, 2019, is found to be proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.343, 3.344, 4.97, Diagnostic Codes (DC) 6840-6845. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1964 to December 1965, with additional service in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In September 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. 1. The reduction in the rating for residuals of lung cancer, status post right thoracotomy and right lower lobectomy was proper The Veteran contends that his rating for residuals of lung cancer, status post right thoracotomy and right lower lobectomy should be higher. The record shows the Veteran submitted an application for service connection for lung cancer in August 2018. Service connection for lung cancer was granted in a November 2018 rating action, and as the condition was still undergoing treatment, he was assigned a 100 percent disability evaluation under diagnostic code 6819, effective from August 2018. Following a May 2019 examination, the RO wrote the Veteran in June 2019, advising it proposed to reduce his lung cancer disability rating to 0 percent. In an August 2019 rating action, the Veteran's lung cancer rating was reduced from 100 percent to 30 percent under diagnostic code 6844, (post-surgical residuals) to be effective from November 2019. In October 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of residuals of his lung cancer addressed in the August 2019 rating decision. In March 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision now on appeal, which continued the 30 percent rating assigned effective from November 1, 2019. As indicated, the Veteran's lung cancer was initially rated under 38 C.F.R. § 4.97, Diagnostic Code 6819. Under that code, following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, a rating of 100 percent shall be assigned and shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation 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 recurrence or metastasis, the evaluation is to be based upon residuals of lung cancer. 38 C.F.R. § 4.97. Here, the reduction at issue is not a formal reduction under the substantive provisions of 38 C.F.R. §§ 3.343 and 3.344 because the provisions of Diagnostic Code 6819 contain a temporal element for continuation of a 100 percent rating for cancer residuals. Therefore, the RO's action was not a "rating reduction" as that term is commonly understood. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992). Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). In this case, the RO provided the Veteran with the necessary notice of the proposed reduction in June 2019. The Veteran was informed of the proposed reduction, the type of evidence that should be submitted to prevent the reduction, the 60 day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. The Veteran was allowed the 60 day period to submit evidence, and no request for a predetermination hearing was submitted. After allowing the Veteran the appropriate time periods to submit evidence or request a hearing, VA properly provided written notice of the final action in the form of an August 2019 rating decision, which informed the Veteran that his rating would be decreased to 30 percent effective November 1, 2019. As such, more than 60 days elapsed following the notification of the proposed rating reduction until the decision that ultimately reduced the Veteran's disability rating. The Board finds that the June 2019 letter sent by VA to the Veteran has satisfied the requirements of § 3.105. The Veteran was thereafter rated on the residuals of his lung cancer pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6840-6845. Under the General Rating Formula for Restrictive Lung Disease, DC 6840-6845, a 10 percent rating is warranted for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. A 30 percent rating is assigned when FEV-1 is 56 to 70 percent predicted, or FEV-1/FVC is 56 to 70 percent, or the DLCO is 56 to 65 percent predicted. A 60 percent rating is assigned where FEV-1 is 40 to 55 percent predicted, or FEV-1/FVC is 40 to 55 percent, or DLCO is 40 to 55 percent predicted, or when maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is assigned when FEV-1 is less than 40 percent predicted, or FEV-1/FVC is less than 40 percent, or when DLCO is less than 40 percent predicted, or when maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or there is cor pulmonale, or, right ventricular hypertrophy, or, there is pulmonary hypertension as shown by echocardiogram or cardiac catheterization, or where there are episodes of acute respiratory failure, or where outpatient oxygen therapy is required. 38 C.F.R. § 4.97, Diagnostic Code 6840-6845. The May 2019 VA examination, accomplished more than 6 months after cessation of treatment, showed the Veteran's diagnosis was lung cancer, status post right thoracotomy and right lower lobectomy. The Veteran utilized inhalational bronchodilator therapy intermittently. The examiner noted that the Veteran was currently in remission following his September 2018 right thoracotomy and right lower lobectomy. Pulmonary function testing (PFT) was conducted in June 2019. Pre-bronchodilator pulmonary function testing showed FVC of 64 percent predicted, FEV-1 of 67 percent predicted, FEV-1/FVC of 103 percent, and DLCO of 57 percent predicted. Post-bronchodilator testing showed FVC of 72 percent predicted, FEV-1 of 66 percent predicted, and FEV-1/FVC of 91 percent. As such, the Veteran's disability most closely approximated the criteria associated with a 30 percent rating. A review of treatment notes does not reflect additional PFT results or other findings to suggest more severe disability than reported at the VA examination. Thus, the rating of 30 percent pursuant to DCs 6840-6845 most accurately reflects the Veteran's disability. At the Board hearing, the Veteran testified that he gets winded with minimum exertion and that his lung cancer residuals are more severe than the current rating reflects. While the Board recognizes that he is competent to provide statements regarding his observable symptomatology, to assess the severity of his lung cancer residuals in accordance with the particular rating criteria used in this case, it is necessary to rely on PFT testing. As such, his statements would not be considered controlling. The Board is sympathetic to the Veteran's concerns related to exertion and the results of PFT testing. The Board notes that the Veteran may file a supplemental claim if he believes his condition has worsened. The Board is bound by the relevant laws and regulations in determining the appropriate rating for the Veteran's disability manifestations. The competent evidence supports a reduction under the applicable rating criteria. Thus, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, Associate 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.