Citation Nr: 1336259 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-17 251 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to restoration of a 100 percent rating for stroke residuals, currently evaluated separately as 20 percent disabling for mild hemiparesis of the right upper extremity; 10 percent disabling for mild hemiparesis of the right lower extremity; 10 percent disabling for decreased facial sensation; and 0 percent (noncompensable) disabling for dysarthria with expressive aphasia-each effective July 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active service from May 1972 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of the RO that decreased the evaluation for the Veteran's service-connected stroke residuals from 100 percent (effective in July 2007) to 20 percent for mild hemiparesis of the right upper extremity; 10 percent for mild hemiparesis of the right lower extremity; 10 percent for decreased facial sensation; and 0 percent (noncompensable) for dysarthria with expressive aphasia-each effective July 2009, a period less than 5 years. The Veteran timely appealed. In July 2012, the Veteran withdrew his prior request for a Board hearing, in writing. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDINGS OF FACT 1. By a rating decision in January 2008, the RO granted service connection for a stroke associated with hypertension; a disability rating of 100 percent was assigned, effective July 10, 2007. 2. Following a VA examination in January 2008, the RO proposed to reduce the rating for service-connected stroke residuals. 3. By a rating decision in April 2009, the RO implemented the reduction to a combined 40 percent, effective from July 1, 2009. 4. The April 2009 rating decision was made without consideration of pertinent law and regulations. CONCLUSION OF LAW Restoration of a 100 percent rating for the Veteran's service-connected stroke residuals is warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.343, 4.13, 4.97, Diagnostic Code 8008-8599-8299 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In view of the Board's favorable decision in this appeal for restoring a 100 percent rating for stroke residuals, further assistance is unnecessary to aid the Veteran in substantiating the claim. II. Analysis The Veteran is challenging the reduction of the disability rating assigned for stroke residuals, from 100 percent disabling to a combined 40 percent disabling. When reduction of a rating assigned to a service connection disability is considered warranted, a rating proposing such reduction will be prepared setting forth all material facts and reasons. The claimant will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that the rating should be maintained. 38 C.F.R. § 3.105(e). Here, the reduction was carried out in an April 2009 rating decision, more than 60 days after an April 2008 rating action proposed such reduction, with notice to the Veteran in May 2008. In this matter the evidence reflects that the procedure regarding reductions was properly followed, and the Veteran is not alleging otherwise. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 4 Vet. App. 413 (1993) (noting that the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. Moreover, total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability, will not be reduced in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the Veteran attained improvement under the ordinary conditions of life-that is, while working or actively seeking work, or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work; and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343(a) (emphasis added). The Veteran contends that the 100 percent disability rating that had been assigned for his stroke residuals should not have been reduced to a combined 40 percent rating; and that the stroke residuals left him permanently and totally disabled. Because this case involves the reduction of a rating, the question is not whether the Veteran meets the criteria for a 100 percent rating, but, rather, whether the reduction in his rating was proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (holding that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and does not also contemplate a claim for an increased rating). 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. Cf. Dofflemyer, 2 Vet. App. at 281-282 (1992). 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 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). VA records show that the Veteran suffered an acute left internal capsular stroke in July 2007, and was hospitalized for a few days. During a January 2008 VA examination, the Veteran reported having some right-sided weakness, but felt that he had gotten pretty good recovery. He reported that his speech was a little slower, and acknowledged spasm. He also reported low back pain and intermittent numbness in the right leg. The Veteran was ambulatory, and denied any problem except that he was not as fast as he used to be. Examination in January 2008 revealed a normal gait and station with good heel and toe and tandem walk. Speech was slow, and the Veteran sometimes tended to stutter; language was normal. Cranial nerves II to XII were intact, except mild right central VIIth weakness and decreased temperature sense right V1, V2. Motor strength was 5/5 on the left, and 5-/5 on the right with normal tone, bulk, dexterity, and coordination. Sensory was intact to fine touch and position. Temperature and vibration sense were mildly diminished on the right. Reflexes were 1-2+ in the upper extremities, 1+ at the knees, and trace-to-absent at the ankles and slightly increased on the right. The assessment was mild residual right-sided weakness and sensory loss, secondary to subcortical stroke. Social Security records reflect a primary diagnosis of cerebrovascular disease, late effects of; and that the Veteran's disability began in February 2008. Records reflect that, in March 2008, a certified family nurse practitioner indicated that the Veteran was evaluated as 100 percent disabled due to his cerebrovascular accident and residual effects related to the stroke. Consequently, the nurse practitioner opined that the Veteran presently was unable to perform the duties required of him for employment; and that due to the chronic nature of many of his illnesses, he will not be able to perform these tasks in the future. VA records, dated in June 2008, show that the Veteran complained of headache, and mild memory and concentration problem. He reported no new onset of weakness or numbness. He reported some low back pain radiating down his right thigh, and a history of lumbar stenosis. His blood pressure was elevated, and not well controlled as reflected in home recordings. VA neurological evaluation in June 2008 revealed that the Veteran's speech was dysrthria with expressive aphasia; naming was normal, but the Veteran had difficulty with repetition. The Veteran blinked a lot and had little difficulty following commands. There was decreased facial sensation to palpation in V1-V3. The angle of the mouth deviated to the left. Sensory examination was decreased to pinprick on the right side. His gait was circumduction, and the Veteran used a cane. In a June 2008 addendum, a VA staff physician noted right hemiparesis, dysphasia, gait disorder, and likely depression secondary to these major sequelae of stroke. The physician opined that the Veteran needed near perfect control of his blood pressure and lipids, and to stop smoking. In November 2008, the Veteran's wife reported that the Veteran's speech was worse and that the Veteran "doesn't do anything." The Veteran had significant stuttering. He watched television and walked around the house, and had no duties assigned to him. Examination revealed that the Veteran appeared depressed, and that all movements appeared to be a great effort. The Veteran had significant stuttering, with a lot of time to get each word out. Hemiparesis was noted as mild 4/5, but with give way weakness. The Veteran was able to walk with a cane. The Veteran's hypertension was uncontrolled, and hyperlipidemia was uncontrolled. VA mental status evaluation in March 2009 shows an assessment of moderate to severe depression. His symptoms included little interest or pleasure in doing things; feeling down, depressed, or hopeless; feeling tired or having little energy; feeling bad about self or feelings of being a failure; trouble concentrating; and moving or speaking slowly, or being fidgety or restless. The Veteran reported that these symptoms made it "somewhat difficult" for him to work, to take care of things at home, and to get along with other people. The findings of the January 2008 VA examiner formed the basis of the RO's proposal to reduce the Veteran's disability rating from 100 percent to a combined 40 percent rating based on neurological deficits. However, a review of the record demonstrates that the RO improperly relied upon the January 2008 VA examination report, which did not specifically address whether the Veteran's service-connected stroke residuals had improved; and, if so, whether that improvement actually reflected improvement in his ability to function under the ordinary conditions of life and work. On the contrary, the January 2008 VA examiner made no mention of the Veteran's ability to work. Indeed, the record contains no indication of any pending reexamination after a period of employment, as required for reduction of a total disability rating. 38 C.F.R. § 3.343(a). Here, the Veteran's 100 percent disability rating had been awarded specifically on the basis of facts showing severe disability as a result of a hypertensive stroke. The Board is mindful that, in implementing the proposed rating reduction, the RO considered the results of the Veteran's January 2008 VA examination, which tended to show that the Veteran's service-connected stroke residuals no longer met the criteria for a 100 percent rating. Crucially, however, the RO failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life. Pursuant to the Court's holdings in Faust and Brown, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. at 350; see also Brown v. Brown, 5 Vet. App. at 421. As such, the RO's failure to make such a determination in this case renders the reduction void. The law is clear that certain procedures, set forth in Brown and Faust, must be followed when a disability rating is reduced. The RO's failure to comply with the requirements renders the reduction from 100 percent to a combined 40 percent void ab initio. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see also Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-82 (1992). In Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991), the Court explained that where a rating reduction was made without observance of law, the erroneous reduction must be vacated and the prior rating restored. Such action is required in the instant case. Accordingly, the previously assigned 100 percent rating for stroke residuals is restored as of July 1, 2009. The appeal is allowed to that extent. The Board further observes that as the Veteran is now rated as 100 percent disabling from the date of service connection (July 10, 2007), any pending increased disability rating claims as to service-connected stroke residuals are rendered moot. ORDER Reduction of a 100 percent rating for service-connected stroke residuals was improper; restoration of a 100 percent rating is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs