Citation Nr: 1301706 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-07 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Propriety of reduction of the disability rating for asthma from 100 percent to 60 percent, effective from May 1, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served from April 1980 to November 2002, when he retired with more than 22 years of honorable active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). During the pendency of this appeal, the Veteran submitted claims for service connection for several disorders. The record before the Board, including the electronic file, does not reflect that a substantive appeal has been received with respect to any claim other than the claim listed on the title page of this decision. FINDINGS OF FACT 1. The 100 percent disability rating for the Veteran's service-connected asthma had been in effect for less than five years at the time it was reduced. 2. In July 2007, the RO notified the Veteran of a proposed reduction of the disability rating for his service-connected asthma from 100 percent to 60 percent; the action on appeal, a February 2008 rating decision, effectuated reduction of the disability rating for the Veteran's asthma from 100 percent to 60 percent, effective from May 1, 2008. 3. The medical evidence of record is at least in relative equipoise to warrant a finding that a decrease in the severity of asthma at the time of a May 2007 VA examination was temporary, at least in relative equipoise to warrant a finding that the Veteran approximated at least one of the alternative criteria for a total rating for asthma, and is at least in relative equipoise to warrant a finding that the Veteran did not demonstrate actual improvement in service-connected asthma, and that there was not otherwise an adequate basis for reducing the 100 percent rating for asthma from 100 percent to 60 percent, effective from May 1, 2008. CONCLUSION OF LAW The 100 percent rating previously in effect for the Veteran's service-connected asthma was not properly reduced, and the criteria for restoration of the 100 percent rating are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105, 3.344(c), 4.97, Diagnostic Code 6602 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his 100 percent rating for service-connected asthma should be restored because he did not have an improvement in the disability at the time the rating was reduced to 60 percent, effective May 1, 2008. For the reasons that follow, the Board agrees. Because the Veteran's appeal for restoration of the 100 percent rating is granted, and no higher rating may be awarded, no further discussion of application of any duty to the Veteran in this case is required. VA regulations allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after VA follows certain procedural guidelines. 38 C.F.R. § 3.105(e). In this case, the Veteran was notified of the RO's proposed reduction in July 2007, and the reduction was effectuated by the February 2008 rating decision on appeal, when more than 60 days had elapsed after the proposal for reduction, as required by the regulation. There is no indication that the Veteran requested a hearing. Thus, the timing of the reduction was in accordance with the procedural requirements of 38 C.F.R. § 3.105(e). As a preliminary matter, the Board notes that the Veteran does not contend, and the evidence does not reflect, noncompliance with the procedural requirements for rating reductions. See 38 C.F.R. § 3.105(e) (requiring, inter alia, notification of the proposed reduction in evaluation, a statement of the facts and reasons for such reduction, and an opportunity to submit evidence against a proposed reduction). Therefore, the Board will focus only upon the propriety of the reduction. The regulations governing the propriety of a reduction of a rating differ, depending on how long the rating at issue has been in effect. The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b). These provisions prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction of a rating which has been in effect for five years, and these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). The Veteran's 100 percent disability rating for his service-connected asthma was in effect from April 27, 2005, a period of just over three years, at the time of the effectuation of the reduction as of May 1, 2008. Thus, provisions for adjudicating reductions of ratings that have continued for five years or longer at the same level, under 38 C.F.R. § 3.344(a) and (b), are not for application. Instead, an adequate reexamination that discloses improvement in the condition will warrant a reduction in rating. 38 C.F.R. § 3.344 (c); see also Greyzck v. West, 12 Vet. App. 288, 292 (1999). Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.340. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Once permanence is established, a Veteran need not undergo further VA examinations in order to retain his total disability rating for the permanent disability. 38 C.F.R. § 3.327(b)(2)(iii). No finding of permanent and total disability was in effect for asthma when the rating reduction at issue was effectuated, nor had the Veteran sought a determination that the disability was permanent and total. The Veteran does not contend that asthma had resulted in permanent and total disability. In fact, the evidence of record shows that the Veteran maintained full-time employment prior to this appeal and during the entirely of the pendency of the appeal. With respect to disabilities that are likely to improve, that is, as defined for VA purposes, disability ratings in effect for less than five years, re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). The applicable provision has been interpreted as requiring VA to ascertain, based on a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations, when a reduction is implemented. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). At the time the rating decision on appeal was issued, and at all times during the pendency of this appeal, the Veteran's asthma was rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602. DC 6602 provides that the severity of asthma is based primarily on objective numerical results of pulmonary function testing (PFT), or, on the basis of the frequency with which systemic steroids are required to control the asthma. Asthma is evaluated based on forced expiratory volume in one second (FEV-1) or the ratio of FEV-1 to forced vital capacity (FEV-1/FVC). 38 C.F.R. § 4.97. Alternatively, asthma may be rated on the frequency of exacerbations requiring medical care or the frequency of required use of systemic (oral or parenteral) use of high-dose corticosteroids or immunosuppressive medication. DC 6602. A 60 percent evaluation requires FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent predicted, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. DC 6602. A 100 percent rating is assigned for FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; where daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. A revised regulation clarifying evaluation of respiratory conditions, 38 C.F.R. § 4.96(d), became effective October 6, 2006. See 38 C.F.R. § 4.96(d). The revision provides that when applying Diagnostic Codes 6600, 6603, 6604, 6825-6833 and 6840-6845, post-bronchodilator studies are required. By limiting the use of post-bronchodilator studies to these specific diagnostic codes, the revised regulation seems to suggest that pre-bronchodilator studies are to be used when applying DC 6602. At the time the RO proposed a reduction in the evaluation for asthma from 100 percent to 60 percent, the VA examiner noted that the Veteran "is averaging taking Prednisone four weeks every other month." The examiner further noted that the Veteran's "last dose of Prednisone was last week." The Veteran's (FEV-1) was 53 percent of predicted, pre-bronchodilator, and the FEV-1/FVC ratio was 68 percent of predicted. The examiner also noted that the last time the Veteran was diagnosed with pneumonia was in fall 2006. The Veteran had missed five to six days of work in the past year due to asthma. After the proposed rating reduction was issued in July 2007, the Veteran submitted an October 2007 statement indicating that his asthma had not improved, but had in fact deteriorated, that he was having frequent cough and "a lot" of mucous, worse in the afternoon and evening. He reported that he continued to be on Prednisone. The Veteran stated that the one medical test VA conducted was misleading as to his overall degree of disability due to asthma. Most specifically, the Veteran provided a list of the medical providers whose records the Veteran stated were relevant to the severity of asthma. In February 2008, the RO issued a rating decision which effectuated a reduction from 100 percent to 60 percent for disability due to asthma. The rating decision discussed the May 2007 VA examination and noted that the Veteran had submitted an October 2007 statement. In May 2008, VA requested the treatment records the Veteran identified in his October 2007 statement. The provider who treated the Veteran in March 2007 (two months prior to the Veteran's May 2007 VA examination) stated that the Veteran's FEV-1 was 38 percent of predicted and his FEV-1/FVC ratio was below 40 (36 percent). The provider stated in August 2007 that there was improvement in the Veteran's bronchiectasis. In November 2007, the Veteran sought medical evaluation for an exacerbation of symptoms that he reported started 48 hours earlier. The Veteran required a course of Prednisone. In December 2007, the Veteran had improved, with an FEV-1 of 44 percent of predicted and an FEV-1/FVC ratio of 46 percent of predicted. He was taken off Prednisone. However, the next month, in January 2008, the Veteran was hospitalized. At that time, the assessment was that the Veteran had recurrent pulmonary infection beginning in November 2007, which initially improved with antibiotics and Prednisone, but without return to baseline. The Veteran was scheduled for admission for intravenous antibiotics and Prednisone. The Veteran was seen frequently by his medical providers from January 2008 through July 2008. Prednisone was tapered off following the January 2008 hospitalization, and was not taking Prednisone in February 2008, but he experienced and increased in symptoms in March 2008, and Prednisone was restarted. He did not require Prednisone in May 2008. He was able to run one to two minutes. In July 2008, the provider noted that the Veteran's FEV-1 was 50 percent of predicted. The Veteran was hoarse, and had increased sputum production. The provider stated that there was "an exacerbation of asthma." Daily Prednisone was prescribed. In August 2008, the Veteran's symptoms had improved; the Veteran's prescription for Prednisone was changed to p.r.n. (as needed). On VA examination in March 2009, the Veteran reported that he had not required Prednisone since December 2008. The Veteran's FEV-1 was 37 percent of predicted and his FEV-1/FVC ratio was 66 percent. Thus, the evidence establishes that the improvement in the Veteran's FEV-1 and FEV-1/FVC ratio shown at the May 2007 VA examination was at a time when the Veteran had last taken a course of Prednisone ending about a week prior to the VA examination. However, the Veteran was able to sustain that improvement only until November 2007, and required hospitalization in January 2008 after he was tapered off Prednisone and antibiotics in December 2007. Even though the Veteran has continued to work full-time, the evidence does not demonstrate that the Veteran was able to sustain the improvement shown in May 2007 under the ordinary conditions of life. The fact that the Veteran was hospitalized for treatment of pulmonary disorders in January 2008 establishes that the February 2008 reduction of the disability rating for asthma did not meet the regulatory criteria. The evidence establishes that, despite the fact that the Veteran continued to work full-time, he also continued to meet at least one criterion for a 100 percent evaluation for asthma, FEV-1/FVC ratio below 40 percent (37 percent) on VA examination conducted in March 2009. The Board acknowledges that, when the May 2007 examination findings are applied against the rating criteria, the PFT results fall within the parameters for a 60 percent rating, but do not meet the criteria for a 100 percent rating, considered alone. Even so, in claims seeking restoration of a reduced benefit, the central question is not whether the schedular criteria for a particular rating are met (as in a claim for increase), but whether the criteria for reduction were met. See, e.g., Peyton v. Derwinski, 1 Vet. App. 282 (1990). The evidence favorable to the Veteran's contention that he did not demonstrate actual improvement under the ordinary conditions of life, with consideration of each of the alternative criteria for evaluating asthma, is at least in equipoise with the evidence supporting the reduction. Thus, the evidence is not found to support the reduction, and the burden of proof applicable to a rating reduction is not met. The evidence of record fails to demonstrate an actual improvement in the Veteran's service-connected asthma. The evidence is in equipoise to find that the Veteran's symptoms approximated or met one or more of the alternative criteria for a total rating for asthma during the pendency of this appeal. The Board finds that the reduction in rating from 100 percent to 60 percent was therefore improper. Even though the Veteran was apparently able to maintain his sedentary, full-time employment during the pendency of the appeal, the regulatory requirements for proper reduction of 100 percent rating are not met, and the reduction is deemed improper. Restoration of the 100 percent evaluation is warranted. ORDER The reduction of the rating for the Veteran's asthma from 100 percent to 60 percent, effective from May 1, 2008, is deemed to be improper, and the appeal for restoration of the 100 percent disability is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs