Citation Nr: 21008774 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 20-19 921 DATE: February 18, 2021 ORDER The reduction of a disability rating from 70 percent to 50 percent for unspecified depressive disorder with unspecified anxiety disorder, previously diagnosed as major depressive disorder, effective from October 1, 2018 to February 26, 2020, was improper, and restoration of the prior 70 percent disability rating is granted. A disability evaluation in excess of 70 percent for depressive disorder with unspecified anxiety disorder previously diagnosed as major depressive disorder, also diagnosed a major depressive disorder and generalized anxiety disorder, is denied. The reduction of a disability rating from 100 percent to 10 percent for thyroid cancer, effective from October 1, 2018 to February 25, 2020, was improper, and restoration of the prior 100 percent disability rating is granted. FINDINGS OF FACT 1. At the time of the effective date of the July 2018 rating decision reducing the disability rating for the Veteran's service-connected unspecified depressive disorder with unspecified anxiety disorder, previously diagnosed as major depressive disorder, from 70 percent to 50 percent, effective October 1, 2018, a preponderance of the evidence of record did not demonstrate actual improvement since October 1, 2018, either in the Veteran's unspecified depressive disorder or his ability to function under the ordinary conditions of life and work, as shown by full and complete examinations and review of the entire record. 2. At no time during the pendency of this appeal has the Veteran's service-connected unspecified depressive disorder with unspecified anxiety disorder, previously diagnosed as major depressive disorder, also recently diagnosed as major depressive disorder and generalized anxiety disorder, been manifested by total occupational and social impairment due to symptoms such as grossly inappropriate behavior, persistent delusions or hallucinations, inability to perform activities of daily living, disorientation to time or place, or memory loss in forgetting the names of close relatives. 3. At the time of the effective date of the July 2018 rating decision reducing the disability rating for the Veteran's service-connected thyroid cancer from 100 percent to 10 percent, effective October 1, 2018, a preponderance of the evidence of record did not demonstrate actual improvement since October 1, 2018, either in the Veteran's thyroid cancer or his ability to function under the ordinary conditions of life and work, as shown by full and complete examinations and review of the entire record. CONCLUSIONS OF LAW 1. The criteria for a restoration of a 70 percent rating for unspecified depressive disorder with unspecified anxiety disorder, previously diagnosed as major depressive disorder, from October 1, 2018 to February 26, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.130, Diagnostic Code 9434 (2019). 2. The criteria for a disability rating greater than 70 percent for unspecified depressive disorder with unspecified anxiety disorder, previously diagnosed as major depressive disorder, also diagnosed a major depressive disorder and generalized anxiety disorder, have not been met at any time. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2019). 3. The criteria for a restoration of a 100 percent rating for thyroid cancer with residuals of hypothyroidism from October 1, 2018 to February 26, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.321, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.119, Diagnostic Code 7914 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1989 to May 1992. Reductions The Board notes that VA's Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2019). In VA's Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a veteran's disability may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating 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 last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). If additional evidence is not received within that period, 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. In addition, the appellant will be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105(h). These are such important safeguards that the U.S. Court of Appeals for Veterans Claims (Court) has held that, where VA has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Under 38 C.F.R. § 3.344 (c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. Prior to reducing a Veteran's disability rating, however, VA is required to "comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect." Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)). The Court has held that 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. Brown, 5 Vet. App. at 421; see also Schafrath, 1 Vet. App. at 594 ("[t]hese requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition'). See also 38 C.F.R. § 3.344(c) (2019). 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 evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Unspecified Depressive Disorder with Unspecified Anxiety Disorder Previously diagnosed as Major Depressive Disorder Applying the facts in this case to the legal criteria set forth above, the Board finds that the reduction at issue was improper. As a preliminary matter, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) in reducing the appellant's disability rating. The RO issued a letter in April 2017 advising the Veteran of the proposed reduction, his right to present additional evidence within 60 days of receipt of the letter, and his right to request a hearing. The July 2018 rating decision effectuating the reduction was not issued until the appropriate time period had elapsed, and the effective date of the reduction was in accordance with applicable criteria. Thus, the Board finds that the requirements of 38 C.F.R. § 3.105(e) were met. Thus, the next question for consideration is whether the reduction was proper based on applicable regulations. When the evidence indicates that a condition has stabilized to the point that a particular rating has continued for a long period of time (five years or more), and an examination indicates improvement in the condition, the rating agency must review the entire record of examinations and the medical-industrial history in order to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. In arriving at a determination that there is material improvement in a physical or mental condition, the rating agency must consider whether the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The 70 percent evaluation was in effect for more than 5 years and the provisions of 38 C.F.R. § 3.344 are applicable. When the issue is whether the RO is justified in reducing a veteran's rating, the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344(a), that a rating reduction is warranted. See Brown v. Brown, 5 Vet. App. 413 (1993). Pursuant to § 3.344, the Board must (1) review the entire record of examinations and medical and industrial history to ascertain whether the examination or examinations on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete than those on which payments were authorized or continued; (3) nor reduce an evaluation for a disability which is subject to periodic improvement on one examination except in cases where all the evidence clearly warrants a finding of material improvement; and (4) consider whether the evidence makes it reasonably certain that any improvement found will be maintained under the ordinary conditions of life. Id. at 419. The General Formula for Rating Mental Disorders, Diagnostic Code 9434, provides that a 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent evaluation is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. The symptoms cited above follow the phrase "such symptoms as" which indicates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating. The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002). A review of the record reveals that Veteran’s 70 percent disability evaluation was continued in a January 2015 rating determination based upon the results of a January 2015 VA examination. The results of this examination revealed the Veteran to have occupational and social impairment with reduced reliability and productivity. The Veteran was noted to have a depressed mood, anxiety, suspiciousness, chronic sleep impairment and disturbances of motivation and mood. Mental status examination revealed he was married. He was oriented to all spheres. His speech was normal in rate and rhythm. His mood was mildly dysphoric with congruent affect. His appearance and hygiene were adequate. He requested that the door be left slightly open. They spoke softly to prevent anyone hearing his private information. He denied any SI/HI plans or intent. His thought processes were linear and there was no evidence of a thought disorder. His attention and concentration appeared intact. His intelligence was thought to be in the average range. The examiner stated that, overall, the Veteran continued to present with symptoms of depression and anxiety with continued impairment in the moderate range. He had been able to maintain relationships with his family but otherwise had limited support. Records indicated that the Veteran had the ability to make continued progress or stabilization with his mental health symptom experience and resulting impairment. She indicated that given that the Veteran's unspecified depressive disorder and unspecified anxiety disorder continued to be moderate and not severe, and that there was a potential for improvement or maintenance at the current level, permanent and total rating was not warranted at this time. The basis for the reduction were the findings made at the time of February 2017 and June 2018 VA examinations. At the time of the February 2017 VA examination, the Veteran’s psychiatric symptoms were noted to cause occupational and social impairment with reduced reliability and productivity. These symptoms caused depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. Mental status examination revealed the Veteran was oriented to all spheres. His speech was normal in rate and rhythm. His appearance and hygiene were adequate. His mood was pleasant with congruent affect. His thought processes were linear and there was no evidence of thought disorder. He denied any current suicidal ideation and/or homicidal ideation, plans or intent. His attention and concentration appeared intact. His intelligence was estimated to be in the average range. He requested that this examiner's office door be left cracked open and he acknowledged that he knew this could cause issues with confidentiality. His request was granted and the examiner noted that the Veteran would periodically look outside of the office door. The examiner indicated that due to the Veteran's current report of depressive and anxiety related symptoms, the diagnoses of unspecified depressive disorder and unspecified anxiety disorder, using the DSM 5, were being rendered, and were a continuation from the previous exam. It appeared that some of his current mood related symptoms were related to some of his physical health issues including the thyroid cancer, as well as his limitations due to his physical health issues. The examiner specifically indicated that, overall, the Veteran's current level of functioning appeared congruent to that at the time of his last exam. He continued to function with moderate range impairment with reduced reliability and productivity. The examiner stated that the Veteran should be commended for maintaining his marriage of 24 years. The examiner further indicated that the Veteran should also be commended for his proactively participating in his own mental health treatment. At the time of the June 2018 VA examination, the Veteran’s psychiatric disorder was again noted to result in occupational and social impairment with reduced reliability and productivity. These symptoms caused depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. Mental status examination revealed he was appropriately dressed and neatly groomed. He was oriented to all spheres. His speech was typical conversational volume, rate and rhythm. His mood was pleasant and congruent with his affect. His attention and concentration appeared intact. Thought content appropriately addressed the questions asked. Thought processes were logical and coherent. He denied experiencing any delusions or hallucinations and none were present during the interview. The Veteran also denied any current suicidal or homicidal ideation, plans or intent. His intelligence was estimated to be in the average range. The examiner indicated that the current severity of the Veteran's mental health conditions appeared best described as occupational and social impairment with reduced reliability and productivity. He noted that this level of impairment had been identified in at least the last two exams and it appeared that the Veteran's functioning had not changed much since his last exam. His mental health records over the past year were consistent with prior years and they showed a stabilization of his depressive and anxious symptoms with the medications that he was prescribed. The examiner indicated that, socially, the Veteran reported a number of strong positive relationships with family members including his wife of 24 years, his children, his grandchildren, as well as several men with whom he socialized. Occupationally, the Veteran had not been employed for a number of years, so it was difficult to assess his functioning in this area. However, given that his mental health symptoms appeared to have stabilized, it was less likely that his mental health conditions alone would create substantial barriers to employment. As noted above, 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. In the current case, the reduction was based upon the 2017 and 2018 VA examinations. A review of these examinations demonstrates that there was no improvement in the Veteran’s condition which would have warranted the reduction. The 2017 and 2018 VA examiners specifically indicated that the Veteran’s condition had not changed over the last several years, with the examiners indicating that the Veteran’s symptoms had essentially remained the same. Comparing the results of the 2015 VA examination with the results of the 2017 and 2018 examinations, there was no improvement in the Veteran’s ability to function. Therefore, a reduction was not warranted, and the 70 percent disability evaluation should be restored. Increased Evaluation Unspecified Depressive Disorder In addition to the findings noted above, the Veteran was also afforded a VA examination in February 2020, at which time diagnoses of major depressive disorder and generalized anxiety disorder were rendered. The examiner indicated that these psychiatric disorders resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported that he did not like being around people. He indicated that his wife and close family members were the only people he was comfortable around. He stated that his symptoms were about the same since the last time he was evaluated. The Veteran’s psychiatric disorder caused depressed mood; anxiety; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and suicidal ideation Mental status examination revealed he was casually dressed, and his hygiene and grooming were appropriate. The Veteran was pleasant to work with and he responded openly to questions. He maintained appropriate eye contact and his rate, tone, and volume of speech was within normal limits. The Board has reviewed the evidence of record, lay and medical, and finds that the Veteran has not met the criteria for a higher 100 percent disability rating for an unspecified depressive disorder. See 38 C.F.R. § 4.130. The record does not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation for an unspecified depressive disorder and a generalized anxiety disorder. At the time of the prior VA examinations, performed in 2017 and 2018, the examiners indicated that the Veteran had a depressive disorder that caused occupational and social impairment with reduced reliability and productivity. These are the criteria associated with a 50 percent disability evaluation. Moreover, at the time of the most recent VA examination, the Veteran's depressive and anxiety disorders were noted to cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, the criteria for a 70 percent disability evaluation. The Veteran has been found to have no more than occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood at the time of any examination, which is the criteria for a 70 percent disability evaluation. There have also been no findings of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name at any time. Moreover, while he has limited social interaction, the Veteran has been noted to keep in contact with his family and currently remains married. As noted above the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately, in Mauerhan, the Court upheld the Board's decision noting that the Board had considered all of the veteran's psychiatric symptoms, whether listed in the applicable rating criteria or not, and had assigned a rating based on the Veteran's level of occupational and social impairment. Mauerhan v. Principi, at 444. Applying this analysis to the criteria for the 100 percent rating, it follows that the Veteran would be entitled to that rating if his unspecified depressive order also diagnosed as major depressive disorder and generalized anxiety disorder caused total occupational and social impairment, regardless of whether he had some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms were listed or not. The Board concludes that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating criteria under DC 9434 for any period. 38 C.F.R. § 4.130. The weight of the evidence shows that the Veteran has not had total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name for any period. Thyroid Cancer-Reduction Applying the facts in this case to the legal criteria set forth above, the Board finds that the reduction at issue was improper. As a preliminary matter, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) in reducing the appellant's disability rating. As noted, the RO issued a letter in April 2017 advising the Veteran of the proposed reduction, his right to present additional evidence within 60 days of receipt of the letter, and his right to request a hearing. The July 2018 rating decision effectuating the reduction was not issued until the appropriate time period had elapsed, and the effective date of the reduction was in accordance with applicable criteria. Thus, the Board finds that the requirements of 38 C.F.R. § 3.105(e) were met. Thus, the next question for consideration is whether the reduction was proper based on applicable regulations. At the time of the July 2018 rating decision at issue in this case, the 100 percent rating for the appellant's service-connected thyroid cancer had been in effect since December 30, 2013, which was a period of less than five years. Thus, the provisions of 38 C.F.R. § 3.344(c), which apply to evaluations in effect for less than five years, are for application in this case. See 38 C.F.R. § 4.10. In determining whether the reduction at issue in this case complies with the provisions of 38 C.F.R. §§ 4.10, 3.344(c), the Board has reviewed the entire record. Thyroid cancer is rated under Diagnostic Code 7914, which delineates criteria for "neoplasm, malignant, any specified part of the endocrine system." Pursuant to Diagnostic Code 7914, a 100 percent rating shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. 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 condition should be rated on residuals. 38 C.F.R. § 4.119, Diagnostic Code 7914. The reduction was based upon the results of the February 2017 and July 2018 VA examinations. At the time of the February 2017 VA examination, the examiner noted that the Veteran had had a needle biopsy which was followed by surgical resection. He reported receiving iodine radiation every 6 months to check on his status. The specialist, at the time of his surgery, noted he had multiple positive surgical margins at the time of his primary surgery in December 2013. Therefore, his surveillance would continue indefinitely. He had hypothyroidism because of the surgical removal of his thyroid gland. It was noted that he would need to take lifelong thyroid replacement hormones. The examiner observed that the Veteran had received radioactive iodine treatment in March 2016. The examiner indicated that the Veteran did not have any malignant neoplasms or metastases. At the time of the June 2018 VA examination, the examiner noted that the Veteran reported that his physician stated that he will likely never be "cancer-free" and his surveillance may continue indefinitely. The Veteran was noted to have hypothyroidism because of the surgical removal of his thyroid gland. He had to take lifelong thyroid replacement hormones and the Veteran reported he still had a great amount of fatigue daily and felt cold all the time. The examiner noted the prior surgery in 2013, the radiation treatment, and the continuous medication with synthroid for hypothyroid residual from the ablation. The examiner indicated that the Veteran’s cancer was in remission. In a September 2019 report, the Veteran’s treating physician indicated that the Veteran had moderately aggressive thyroid carcinoma with primary resection leaving positive surgical margins. He noted that the treatment had been successful at eliminating current evidence of the disease, but this was not considered a therapeutic cure. At the time of the March 2020 VA examination, which served as the basis for the reassignment of a 100 percent disability evaluation, it was noted that the Veteran was discovered to have a thyroid mass in 2013 and biopsy was indeterminant for malignancy. He had a total thyroidectomy in December 2013. Pathology noted papillary thyroid carcinoma with extrathyroidal invasion to soft tissues. The Veteran underwent a hypothyroid preparation with a low iodine diet, and whole body scan showed only thyroid bed activity. He received ablation with the post therapy scan showing the same. The Veteran was noted to still have moderately aggressive thyroid carcinoma with primary resection leaving positive surgical margins. He would be starting radiation treatments the next month. As noted above, 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. In the current case, the reduction was based upon the 2017 and 2018 VA examinations. While the examiners indicated that the Veteran did not have thyroid cancer, with the 2018 VA examiner noting that it was in remission, the 2017 examiner did note the positive surgical margins at the time of the surgery. Moreover, the Veteran’s treating physician noted that the Veteran had moderately aggressive thyroid carcinoma with primary resection leaving positive surgical margins. Furthermore, the 2020 VA examiner also indicated that the Veteran still had moderately aggressive thyroid carcinoma with primary resection leaving positive surgical margins. As such, the Board will find that the cancer for which the Veteran underwent surgery and radiation still remained present throughout the time period in question. Therefore, the condition did not improve and reduction was not warranted. As such, the 100 percent disability evaluation should be restored. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.