Citation Nr: 21024762 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-00 964 DATE: April 26, 2021 ORDER The reduction of the rating for service-connected residuals of B cell lymphoma, to include anemia to zero percent, effective March 1, 2015 was proper; restoration of the 100 percent rating is denied. FINDING OF FACT The evidence at the time of the December 2014 rating decision demonstrated that the improvement in the Veteran's residuals of B cell lymphoma, to include anemia reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the rating for residuals of B cell lymphoma, to include anemia from 100 percent to zero percent, effective March 1, 2015 was proper, and the 100 percent rating is not restored. 38 U.S.C. § 1155, 5107(b), 5112(b)(5); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code 7700. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1967 to March 1969 and July 1971 to June 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board denied this issue. Subsequently, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans' Claims (Court), which pursuant to a November 2020 Joint Motion for Remand (JMR), vacated the Board's decision to the extent the Veteran's claim were denied, and remanded the matter for further consideration. Specifically, the JMR directed the Board to adjudicate whether the Veteran’s shortness of breath or other respiratory symptoms are residuals of his service-connected B cell lymphoma, or the treatment he received for that condition. Now the issue returns for further appellate review. The reduction of the rating for service-connected residuals of B cell lymphoma, to include anemia to 0 percent, effective March 1, 2015 was proper; restoration of the 100 percent rating is denied. The Veteran contends that the rating for his residuals of B cell lymphoma should not have been reduced from 100 percent to zero percent disabling since March 1, 2015. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Where a disability rating has been in effect for five years or more, a rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(a) do not apply to disabilities for which the assigned ratings have been in effect for less than five years, which facts will be laid out in more detail below. Such disabilities are not considered stabilized and, thus, are subject to improvement. Re-examination disclosing improvement in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c). In any rating reduction case, however, not only must it be determined that an improvement in a disability had actually occurred at the time of the reduction, but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Additionally, the examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992). In determining whether a reduction was proper, the Board must focus upon 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 actually improved. Cf. Dofflemyer, 2 Vet. App. 281-282. However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements for rating reductions. The proper procedure was followed in the September 2014 notification letter and November 2014 rating decision for notifying the Veteran of the bases for the reduction, affording him the opportunity to attend a pre-reduction hearing, and affording him the opportunity to submit additional evidence. The Veteran does not contend that there was a procedural deficiency. See 38 C.F.R. § 3.105. As stated above, in determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated but may consider post-reduction evidence in the context of evaluating whether the condition had actually improved. For disabilities that have been rated at the same level for a long period of time (i.e., five years or more), the law also requires VA to show that it is reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Here, the Veteran's residuals of B cell lymphoma, to include anemia was assigned a 100 percent rating, effective June 22, 2012 and had been in effect for more than two years when it was reduced to zero percent, effective March 1, 2015. The Board will herein address the propriety of the reduction. The Veteran's B cell lymphoma of the lungs is rated under Diagnostic Code 7715, which covers Non-Hodgkin's lymphoma. Under Diagnostic Code 7715, a 100 percent rating is warranted with active disease or during a treatment phase. NOTE: The 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. 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 provision of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals. 38 C.F.R. § 4.118, Diagnostic Code 7715. The Diagnostic Code states that if there has been no local recurrence or metastasis, rate on residuals. 38 C.F.R. §4.118, Diagnostic Code 7715. Residuals that include anemia are rated under Diagnostic Code 7700. Under Diagnostic Code 7700, a zero percent rating is warranted for residuals of B cell lymphoma to include anemia when the hemoglobin level is 10gm/100ml or less and the condition is asymptomatic. A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted for a hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is warranted for a hemoglobin level of 7 gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). A 100 percent rating is warranted for a hemoglobin level of 5 gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling. A Note to Diagnostic Code 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, are to be rated separately. 38 C.F.R. § 4.117. The Veteran was diagnosed with B cell lymphoma in May 2012. Service connection for B Cell lymphoma was granted with a 100 percent rating effective June 22, 2012 as a result of chemotherapy that required intensive therapy for a period of six months. Prior to the reduction proposal in March 2014, medical treatment records revealed hemoglobin levels of 9.8gm/100ml in January 2012 and 13.9gm/ml in April 2012. In a March 2014 VA examination, the examiner noted that the Veteran completed treatment in January 2013, and the Veteran experienced residuals. Complications related to anemia included weakness, easy fatigability, shortness of breath, and dyspnea on mild exertion. Hemoglobin levels on examination measured at 13.8gm/100ml. The examiner also noted that the service-connected disability did not affect the Veteran's ability to work. The Board notes that the March 2014 examination report shows an improvement in the Veteran's hemoglobin levels and the examiner's opinion that the residuals had no impact on the Veteran's ability to work. This evidence shows that the Veteran's residuals of B cell lymphoma, to include anemia, have sustained improvement under the ordinary conditions of life and work. The examination report reveals hemoglobin levels beyond the levels required for a compensable rating under Diagnostic Code 7700. Evidence available to the agency of original jurisdiction (AOJ) at the time the reduction was effectuated shows the Veteran exhibited few symptoms affiliated with B cell lymphoma residuals. The March 2014 VA examiner noted that the Veteran's symptoms of anemia included dyspnea on mild exertion. However, the hemoglobin level on examination was 13.8gm/100ml, and according to the rating criteria, the hemoglobin level would have to be less than 10gm/100ml to be considered for a compensable rating in conjunction with the listed residuals. Although the Veteran experienced dyspnea, the rating criteria for Diagnostic Code 7700 specifically include the conjunctive "with," so that the Veteran's symptoms must be present in conjunction with the hemoglobin levels listed. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). As the Veteran's reported symptoms are not present in conjunction with a hemoglobin level lower than 10gm/100ml, a compensable rating is not warranted under diagnostic code 7700. The Board finds that the preponderance of the evidence shows that the reduction was warranted. The July 2012 rating decision in which the Veteran was originally assigned a 100 percent rating was primarily based on a private treatment letter indicating that chemotherapy was necessary. Since completion of chemotherapy, the Veteran has consistently reported symptoms from residuals of the B cell lymphoma in written statements and treatment records during the relevant period on appeal. The Veteran is competent to report symptoms such as pain, see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), and the Board finds his reports credible. However, the evidence of record supports a finding of sustained improvement and a proper reduction by the RO, as the Veteran's hemoglobin levels are measured to be above 10gm/100ml. The March 2014 VA examination report is the only VA examination of record following the diagnosis of B cell lymphoma and chemotherapy treatment. The subsequent medical reports after the diagnosis also show sustained improvement of the Veteran's symptoms, as they show considerable improvement in the Veteran's hemoglobin levels. The November 2020 JMR instructs the Board to consider whether the Veteran’s complaints of shortness of breath are a residual of his B cell lymphoma. A March 2014 VA examination report noted that the Veteran had symptomatic anemia that included weakness, easy fatigability, shortness of breath and dyspnea on mild exertion. However, a January 2018 respiratory DBQ report reflected diagnoses of asthma, emphysema and chronic obstructive pulmonary disease (COPD) and noted that the Veteran's claimed shortness of breath (dyspnea) is reflected in these diagnoses. A January 2018 VA examiner opined that claimed respiratory condition was less likely than not proximately due to or the result of his service connected B-cell lymphoma as the Veteran's service treatment records and computed tomography scan show emphysematous, that this is consistent with his long history of smoking and that service treatment records show resolution of anemia by CBC results in 2014. In addition, a June 2018 VA examiner noted that the Veteran’s lymphoma treatment was focused on the abdominal/retroperitioneal area and that he has primary asthma and COPD/emphysema that could produce his shortness of breath. Therefore, the Veteran’s subjective reports of shortness of breath were been attributed to a respiratory condition, not his B cell lymphoma. In addition, the January 2018 VA examiner attributed the Veteran’s diagnosed respiratory conditions to his history of smoking and a June 2018 VA examiner attributed the Veteran’s shortness of breath is his respiratory diagnoses. As a result, the Veteran’s reports of shortness of breath cannot be found to be a residual of his B cell lymphoma. The Board notes the arguments of the Veteran's representative in the November 2019 Informal Hearing Presentation suggesting that the Veteran's respiratory symptoms have worsened to the point that he can no longer perform activities of daily living. However, as stated above, multiple examiners stated that the Veteran respiratory symptoms were contributed by his long history of smoking. Moreover, service connection for dyspnea was denied in a September 2018 rating decision.. In addition, the Veteran’s representative argues that the Veteran’s examination results do not align with his current test results, most recently noted as HgbA1C of 7.7 in 2017. However, hemoglobin A1c levels are indicative of blood sugar levels, not oxygen levels in the blood. In a March 2011 treatment record, the examiner explains that, the HgbA1C tells us information about the Veteran’s diabetes control. The Board notes that the Veteran is diagnosed with diabetes mellitus, that he is separately service connected for such disability and that Diagnostic Code 7700 considers hemoglobin level rather than blood sugar level. Thus, these arguments are therefore without merit. Accordingly, the Board finds that the preponderance of the evidence of record supports a finding that there was sustained, material improvement that continued under the ordinary conditions of life and work as shown by the March 2014 VA examination. The preponderance of the evidence demonstrates that reduction was proper. After full compliance with due process protections, the AOJ properly reduced the 100 percent rating for B cell lymphoma, to include anemia, from 100 percent to zero percent, effective March 1, 2015. Therefore, the Board finds that the reduction was proper. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.