Citation Nr: 22014686 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-32 178 DATE: March 14, 2022 ORDER Restoration of the 100 percent rating (decreased to 30 percent effective December 1, 2018) for squamous cell carcinoma of the lungs status post right lower lobe lobectomy is granted. REMANDED Entitlement to service connection for residuals of lung cancer is remanded. FINDING OF FACT At the time of the September 2018 rating decision (which reduced the rating from 100 percent to 30 percent effective December 1, 2018), the probative evidence weighed in favor of finding that any improvement in the Veteran's squamous cell carcinoma of the lungs status post right lower lobe lobectomy did not actually reflect an improvement in his ability to function under the ordinary conditions of life and work or in the overall frequency and severity of his symptomatology. CONCLUSION OF LAW The criteria for restoration of the 100 percent rating (decreased to 30 percent effective December 1, 2018) for squamous cell carcinoma of the lungs status post right lower lobe lobectomy have been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 4.7, 4.10, 4.97, Diagnostic Codes 6819 to 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from November 1967 to November 1969, to include service in Vietnam. For his meritorious service, the Veteran was awarded, among other awards, the Vietnam Service and Campaign Medals, the Army Commendation Medal, the Combat Infantryman Badge, and the Bronze Star Medal. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a travel Board hearing held before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ granted the Veteran's motion to hold the record open for 30 additional days to allow for the submission of additional evidence. The Veteran also waived regional office consideration of evidence received after the statement of the case. 1. Whether the reduction of the rating for squamous cell carcinoma of the lungs status post right lower lobe lobectomy from 100 percent to 30 percent, effective December 1, 2018, was improper. The Board finds that the reduction of the rating was not proper, and the 100 percent rating must be restored. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran's disability rating, 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. 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. Schafrath, 1 Vet. App. at 594. 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. Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(c), however, specify that the provisions 38 C.F.R. § 3.344(a) and (b) are only applicable for 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. 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, therefore. 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). The Veteran's service-connected squamous cell carcinoma of the lungs status post right lower lobe lobectomy was rated under Diagnostic 6819 from March 28, 2017, to December 1, 2018, which provides that a 100 percent rating is assignable for neoplasms, malignant, and any specified part of the respiratory system exclusive of skin growth. However, the 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 a 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 reoccurrence or metastasis, then it should be rated based on the residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819. According to the medical evidence of record, the Veteran was diagnosed with squamous cell carcinoma of the lungs in August 2016. In October 2016 the Veteran underwent a right lower lung lobectomy. The Veteran's post operative course was complicated by liver laceration. He later developed an empyema, which required drainage, debridement, and rib resection. He developed an abdominal wall hernia in the right upper quadrant. The Veteran was diagnosed with left kidney oncocytoma in December 2017 for which he underwent cryoablation with Urology. In June 2017, the Veteran was initially granted service connection for squamous cell carcinoma of the lungs status post right lower lob lobectomy with an evaluation of 100 percent effective March 28, 2017, the date the RO received the Veteran's Intent to File form. In March 2018, the RO notified the Veteran of the proposal to reduce the evaluation of the Veteran's lung cancer from 100 percent to 30 percent and that the Veteran had 60 days to submit additional evidence that this change should not be made. The RO also notified the Veteran had he had a right to request a personal hearing during that same time frame. In a September 2018 rating decision, the RO decreased the evaluation of the Veteran's service-connected squamous cell carcinoma of the lungs to 30 percent effective December 1, 2018. In May 2017, the Veteran was afforded a VA examination for respiratory conditions (other than tuberculosis and sleep apnea). The Veteran was diagnosed with chronic obstructive pulmonary disease (COPD) and squamous cell carcinoma of the lung with residual abdominal wall hernia. The VA examiner determined that the Veteran's respiratory condition did not require the use of oral parenteral corticosteroid medications or inhaled medications. It did not require the use of oral bronchodilators or outpatient oxygen therapy. The VA examiner noted that the Veteran currently had residual complications due to the neoplasm or its treatment; the Veteran had liver laceration, abdominal hernia, and anemia. The Veteran had a pulmonary punction test performed in May 2017; the examiner determined that the test results reflected the Veteran's current pulmonary function. Pre-bronchodilator testing revealed the following results: 78.4 percent predicted FVC, 63.9 percent predicted FEV-1, 80.9 percent FEV-1/FVC, and 62.2 percent predicted DLCO. Post-bronchodilator testing revealed the following results: 80.6 percent predicted FVC, 64.6 percent predicted FEV-1, 79.6 percent FEV-1/FVC, and 62.2 percent predicted DLCO. The VA examiner noted that the FEV-1 percent predicted most accurately reflected the Veteran's level of disability. The Veteran's lung cancer was primarily responsible for this limitation in pulmonary function. The Veteran's respiratory condition impacted his ability to work, such that he could not lift more than 8 pounds or participate in physically demanding tasks. He was also easily fatigued. He could walk 1 to 2 blocks and sit for 15 minutes, but he had to get up. The VA examiner concluded that the Veteran's cancer had only been recently treated. It had been less than 12 months since his treatment, and therefore his cancer should be considered active. In January 2018, the Veteran was afforded a VA examination for respiratory conditions. The Veteran was diagnosed with chronic obstructive pulmonary disease and squamous cell carcinoma of the lungs. The Veteran's treatment consisted of albuterol 90mg 2 puffs every 4 hours as needed, Fluticasone 50mcg squirt one spray in each nostril twice a day for cough, and Stiolto Respimat inhaler 2 puffs daily. The Veteran currently had shortness of breath. The Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medication. However, the Veteran's respiratory condition required the use of inhaled medication (inhalation bronchodilator therapy) daily for his chronic obstructive pulmonary disease and squamous cell carcinoma of the lungs. The Veteran's respiratory condition did not require the use of oral bronchodilators. It also did not require the use of antibiotics. He did not require the use of outpatient oxygen therapy. The VA examiner indicated that the Veteran's neoplasm was malignant, but it was in remission. The date of the final treatment was in October 2016. The Veteran currently had residual conditions or complications due to his cancer. He had a renal mass that was noted on a January 2018 cat scan and was scheduled for biopsy and cryoablation for February. The VA examiner noted that a pulmonary function test had been performed in May 2017. The VA examiner reported that the Veteran's respiratory condition did not impact his ability to work. In a February 2018 VA addendum medical opinion, the examiner noted that due to co-existing condition of the lungs with overlapping symptoms, he was unable to determine the limitation in pulmonary function testing due only to the specific squamous cell carcinoma condition without resorting to mere speculation. The Veteran was diagnosed with chronic obstructive pulmonary disease following lung resection for squamous cell carcinoma, however. The chronic obstructive pulmonary condition was at least as likely as not related to 30 pack per year smoking history and not a result of the lung cancer or lung cancer treatment. In July 2019, the Veteran was afforded a VA examination for respiratory conditions (other than tuberculosis and sleep apnea). The Veteran's primary condition was squamous cell carcinoma of the lungs status post right lower lobe lobectomy. The secondary conditions were right lower lung lobectomy, laceration to the liver, right rib resection, abdominal wall hernia, and left kidney oncocytoma. The Veteran reported that he had to quit his job due his weakness and overall condition. The Veteran reported that he was a welder before he went into forced retirement and reported that if he were still working, he would not be able to stand and do his job, as he only was able to stand for 5 minutes and then had to rest. He reported that he had continuous short breath that worsened when he was exposed to triggers, such as dust and particles and that the welding would compromise his ability to breath adequately. The Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications. However, it required the use of inhalation bronchodilator therapy daily. He had a rescue inhaler that was prescribed to be used every 4 to 6 hours, and he was consistently using the inhaler every 4 to 6 hours. The Veteran's respiratory condition also required him to use oral bronchodilators daily. He did not have to use antibiotics or oxygen therapy. The VA examiner concluded that the Veteran's cancer was in remission. The Veteran had surgery in October 2016; however, secondary complications resulted from the surgery. A 2019 chest x-ray showed mild pleural thickening of the right lower thorax. Pulmonary function testing had not been performed because the Veteran was too weak to complete this test. As an initial matter, the Board observes that the agency of original jurisdiction complied with 38 C.F.R. § 3.105(e) in that the Veteran was informed of the proposed action in the March 2018 rating decision and was advised of the opportunity to present additional evidence within a 60-day period as well as his right to request a personal hearing. Thus, the Board finds that the notice requirements of 38 C.F.R. § 3.105(e) have been met. Thereafter, the reduction was effectuated in the September 2018 rating decision on appeal, which reduced the rating for prostate cancer from 100 to 30 percent, effective December 1, 2018. Secondly, the Board will discuss whether the Veteran's rating reduction from 100 to 30 percent was proper. At the time the reduction became effective, December 1, 2018, the 100 percent rating for the Veteran's respiratory condition had been continuously in effect for less than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. Further, the rating under Diagnostic Code 7528 was temporary, subject to a new evaluation. A rating reduction is not proper unless a veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000). 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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281 82 (1992). A veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 418 (1993). In this case, the Board finds that, in consideration of the medical evidence of record, the evidence has not shown that improvement will be maintained under the ordinary conditions of life and work. For example, the Veteran's VA examinations show that he had residuals from his squamous cell carcinoma of the lungs status post right lower lobe lobectomy, to include laceration to the liver, right rib resection, abdominal wall hernia, and left kidney oncocytoma. The Veteran's condition made him unable to stand for more than 5 minutes and then had to rest. He reported that he had continuous short breath that worsened when he was exposed to triggers, such as dust and particles. Thus, the Board finds that the restoration of the 100 percent is warranted. Although VA examinations show that the Veteran's lung cancer was in remission, the probative evidence of record showed that any improvement in the Veteran's lung cancer did not actually reflect an improvement in his ability to function under the ordinary conditions of life and work or in the overall frequency and severity of his symptomatology. Accordingly, the Board finds that the RO's reduction was improper, and restoration of the 100 percent is warranted; after the RO implements this restoration, the lung cancer disability will be rated at 100 percent since March 28, 2017, the effective date of service connection. REASONS FOR REMAND 1. Entitlement to service connection for residuals of lung cancer is remanded. According to a July 2019 VA examination for respiratory conditions, the Veteran had been diagnosed with left kidney oncocytoma, rib resection, laceration to liver, and abdominal wall hernia. The Veteran was also diagnosed with chronic obstructive pulmonary disease. New VA examinations should be performed to determine the nature and etiology of other residuals related to the Veteran's lung cancer for which service connection might also be warranted. Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for new VA examinations to determine the nature and etiology of the Veteran's residuals of lung cancer. All necessary tests must be performed. A copy of this remand and claims file must be reviewed. The VA examiner should address the following: (a.) Identify any residuals of the Veteran's lung cancer, to include chronic obstructive pulmonary disease, lift kidney oncocytoma, rib resection, laceration to liver, and abdominal wall hernia. (b.) Are the identified residuals of the Veteran's lung cancer characterized by separate and distinguishable symptoms from the Veteran's lung cancer? (c.) Is it at least as likely as not that any one of the Veteran's residuals of lung cancer is caused by, proximately due to, and/or aggravated by his service-connected squamous cell carcinoma of the lungs status post right lower lobe lobectomy? If so, the RO should grant a separate rating for such disability. (Continued on next page) All opinions must be supported by a sufficient rationale. A negative opinion cannot be solely based on the absence of medical evidence. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.