Citation Nr: 1526820	
Decision Date: 06/24/15    Archive Date: 06/30/15

DOCKET NO.  13-06 568	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a disability rating in excess of 60 percent for service-connected asthma, to include restoration of a 100 percent rating.  


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from June 1983 to August 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

Specifically, in November 2005, the RO reduced the Veteran's 100 percent rating for service-connected bronchial asthma to 30 percent, effective as of February 1, 2006.  In March 2006, the RO denied the Veteran's claim for a rating in excess of 30 percent for such disability.  In September 2006, the RO increased the rating for bronchial asthma to 60 percent, effective as of February 1, 2006.  However, as this was not a full grant of the benefit sought on appeal, and the Veteran has not expressed satisfaction with this determination, his appeal proceeds from the initial unfavorable rating decision.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  

In July 2006, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO as to the rating for his bronchial asthma.  In May 2010, he testified before the undersigned Veterans Law Judge (VLJ) as to the issue of entitlement to a total disability rating for individual unemployability (TDIU) at a hearing at the RO.  He also testified as to the severity of his service-connected bronchial asthma at that time, as this is his only service-connected disability and is the basis for his TDIU claim.  A transcript of each of these hearings has been associated with the claims file.  

This case was previously before the Board three times.  In December 2009, the Board denied a rating in excess of 60 percent for the service-connected bronchial asthma.  The Veteran appealed from that decision to the U.S. Court of Appeals for Veterans Claims (Court).  In November 2010, pursuant to a Joint Motion for Remand, the Court issued an Order vacating the Board's decision and remanding the case for compliance with the directives specified in the Joint Motion for Remand.  

In May 2011, in compliance with the Court's Order, the Board addressed whether new and material evidence was received within the one-year period following the rating decision which reduced the Veteran's rating from 100 to 30 percent (now 60 percent), pursuant to 38 C.F.R. 3.156(b).  The Board found that new and material evidence had been received during such period and, therefore, the RO (as the agency of original jurisdiction) must adjudicate the issue of the propriety of the reduction in rating for bronchial asthma from 100 percent.  The case was remanded for this purpose, and the RO was also directed to inform the Veteran that a notice of disagreement and substantive appeal had not been received as to this issue, and that it would be returned to the Board only if an appeal was fully perfected.  In addition, the Board found that the issues of a rating in excess of 60 percent for bronchial asthma and a TDIU were inextricably intertwined with the propriety of the rating reduction.  As such, these two issues were remanded to the RO for readjudication.  

The Board notes that a different VLJ, U.R. Powell, signed the December 2009 decision that was vacated by the Court, as well as the May 2011 remand to the RO in response to the Court's Order.  However, as noted above, the undersigned VLJ held a hearing as to the issue of entitlement to a TDIU.  During that hearing, the Veteran also testified as to the severity of his bronchial asthma currently and at the time of the actions by the RO to reduce the rating for such disability.  This hearing was held while the case was pending on appeal to the Court, as it had been perfected to the Board after the prior denial of the increased rating claim, which the Court vacated.  The Board's general policy is to return a case to the signing judge when it is remanded by the Court.  However, if another judge conducts a hearing in the meantime, then the case will be assigned to that judge.  Further, VLJ Powell did not hold a hearing concerning any of the issues on appeal in this case.  Therefore, a panel decision is not necessary, and the undersigned VLJ may address all issues.  

In October 2011, the RO issued a rating decision affirming the reduction of the 100 percent rating for bronchial asthma, of which the Veteran was notified in November 2011.  The Veteran appealed from that determination through a November 2011 notice of disagreement.  A review of the Veteran's Virtual VA file shows that the RO notified the Veteran in a March 2012 letter that a Statement of the Case (SOC) would be provided.  However, it was not completed, and the Board again remanded the case.  

The Board most recently remanded the Veteran's case in May 2012 for further development-including issuance of a Statement of the Case for the reduction issue.  While on remand, the RO granted a TDIU, effective February 1, 2006.  The other issues (consolidated on the cover page of this decision) have been returned to the Board for adjudication.

In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS.  The Board has reviewed both the paper and electronic records in rendering this decision.  


FINDING OF FACT

The October 2005 and September 2006 rating decisions that effected the rating reduction from 100 percent to 60 percent for asthma does not reflect specific consideration of the provisions of 38 C.F.R. § 3.344.  


CONCLUSION OF LAW

The reduction of the 100 percent rating assigned for the service-connected asthma was not proper and is void ab initio.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.97, Diagnostic Code 6602 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Duty to Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

To the extent that the action taken below is favorable to the Veteran, further discussion of VA's duties is not required.  

Legal Criteria

VA regulations provide that, where reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(e). 

In addition, the RO must notify the veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § 3.105(e). 

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.  See Faust v. West, 13 Vet. App. 342,349 (2000) (citing to 38 C.F.R. §§ 4.1, 4.2, 4.10; Brown v. Brown, 5 Vet. App. at 420).  

The provisions of 38 C.F.R. § 3.344(a) have been interpreted as imposing four specific requirements on VA prior to a rating reduction: (1) VA must review "the entire record of examinations and the medical-industrial history...to ascertain whether the recent examination is full and complete;" (2) "[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction;" (3) "[r]atings on account of diseases subject to temporary and episodic improvement, e.g.,...asthma..., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated;" and (4) "[al]though material improvement in the physical or mental 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."  Brown v. Brown, 5 Vet. App. 413, 419 (1993) (quoting from 38 C.F.R. § 3.344(a)).  

Pursuant to 38 C.F.R. § 3.344, if a rating has been in effect for more than 5 years, such as here, then rating agencies will handle cases of changes in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  38 C.F.R. § 3.344(a).  In such cases, it is essential that the entire record of examination and the medical-industrial history be reviewed 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.  Id.  Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction.  

VA's failure to observe applicable law and consider all relevant evidence renders reduction decision void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999); Brown, 5 Vet. App. at 422.  The applicable legal standard summarized in Sorakubo v. Principi, 16 Vet. App. 120 (2002) requires that in the case of a rating reduction, the record must establish that the reduction is warranted by a preponderance of the evidence and that the reduction was in compliance with 38 C.F.R. § 3.344.  

Bronchial asthma is evaluated under Diagnostic Code 6602.  38 C.F.R. § 4.97.  A 10 percent rating is warranted for Force Expiratory Volume at one second (FEV-1) of 71-to 80-percent predicted; or, FEV-1/Forced Vital Capacity (FVC) of 71 to 80 percent; or, intermittent inhalational or oral bronchodilator therapy.  A 30 percent rating is warranted for FEV-1 of 56- to 70-percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, daily inhalational or oral bronchodilator therapy; or, inhalational anti-inflammatory medication.  A 60 percent evaluation is assigned when FEV-1 is 40 to 55 percent the predicted value, or FEV-1/FVC of 40 to 55 percent; or if the asthma requires at least monthly visits to a physician for care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.  A 100 percent evaluation is assigned when FEV-1 is less than 40 percent predicted, FEV-1/FVC is less than 40 percent, the Veteran experiences more than one attack per week with episodes of respiratory failure, or the Veteran requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications.  38 C.F.R. § 4.97, Diagnostic Code 6602 (2014).

Factual Background and Analysis

The Board finds that the reduction of the disability rating for the service-connected asthma from 100 percent to 60 percent effective February 1, 2006, is void ab initio because the reduction was improper.  Restoration of the 100 percent rating for service-connected asthma is warranted from February 1, 2006.  

By way of background, service connection for asthma was originally awarded in a January 1985 rating decision.  The RO assigned a 10 percent rating, effective August 25, 1984.  In a December 1993 rating decision, the RO increased the Veteran's rating to 30 percent, effective March 22, 1992.  In June 2000, the RO increased the Veteran's rating to 100 percent, effective February 9, 2000.  

In August 2004, the RO informed the Veteran that he would need to attend a VA examination to determine the current severity of his asthma.  

In November 2004, the RO proposed to reduce the rating assigned to the service-connected asthma from 100 percent to 30 percent under Diagnostic Code 6602.  An October 2005 rating decision effectuated the reduction, effective on February 1, 2006.  The Veteran appealed the reduction, and in a September 2006 rating decision, the RO increased this rating to 60 percent, effective February 1, 2006.  Effectively, the 100 percent rating for asthma was reduced to 60 percent as a result of the October 2005 and September 2006 rating decisions.  

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines.  Id. 

In the present case, the requirements set forth in 38 C.F.R. § 3.105(e) (notice of the contemplated action and a 60 day period to present additional evidence) have been met.  See the November 23, 2004, RO letter. 

However, the Board finds that the reduction of the disability rating for asthma from 100 percent to 60 percent is void because the provisions of 38 C.F.R. § 3.344 were not considered and the October 2005 decision (sent to the Veteran in November 2005) and September 2006 decision reducing the rating were not in accordance with law.  The RO did not make a determination as to whether the 100 percent rating for the asthma was in effect for 5 or more years, and did not make a determination whether 38 C.F.R. § 3.344 (a) and (b) or 38 C.F.R. § 3.344 (c) were applicable.  

The RO also did not make a finding as to whether the VA examination used as a basis for the reduction was adequate as set forth by 38 C.F.R. § 3.344; nor were there findings that it was reasonably certain that any improvement found would be maintained under the ordinary conditions of life.  Improvement means an actual change in the disability and in the ability to function under the ordinary conditions of life and work.  Brown v. Brown, 5 Vet. App. 413 (1993).  Improvement was not specifically discussed in either the October 2005 or September 2006 rating decisions.  The word improvement indeed was not used.  The November 21, 2005, notice letter indicates that the RO had reviewed the medical evidence concerning the Veteran's service-connected asthma and noted "improvement."  The RO did not discuss whether there was an actual change and that the improvement would be maintained under the ordinary conditions of life.  See 38 C.F.R. § 3.344. 

Neither the October 2005, nor the September 2006 rating decisions set forth a comparison of the Veteran's disability at the time of the reduction and when the 100 percent disability rating was first assigned.  For example, only the September 2004 and March 2006 VA examination reports/pulmonary function tests (PFTs) were discussed.  There was no discussion of the medical evidence which was the basis of the 100 percent rating assigned in the June 2000 rating decision.  The June 2000 rating decision indicates that the 100 percent rating was assigned to the asthma based upon evidence showing daily use of systemic corticosteroids.  The October 2005 rating decision based the reduction upon the September 2004 and March 2006 VA examination reports/PFTs which did not include a review of the Veteran's claims file and did not specifically address whether daily use of systemic corticosteroids were still required to treat the service-connected asthma.  In both the October 2005 and September 2006 rating decisions, the RO considered what the proper rating was as if a higher rating was the sole determination to be made.  The same essentially is true of the December 2012 Statement of the Case (SOC).  

In any rating-reduction case, it must be determined not only that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work.  See Brown, 5 Vet. App. at 420.   

The Board notes that here, the rating decisions effectuating the reduction in October 2005 and September 2006, and the December 2012 SOC all failed to demonstrate findings consistent with the types of findings required for cases in which 38 C.F.R. § 3.344 (a) and (b) or 38 C.F.R. § 3.344 (c) are applicable.  In fact, the Board notes that 38 C.F.R. § 3.344 is not even cited in the October 2005 or September 2006 rating decisions.  The provisions of 38 C.F.R. § 3.344 were neither included in the December 2012 SOC, nor discussed by the RO in its reasons and bases.  

It appears that an attempt was made to follow all pertinent statutes and regulations, but it fell short.  Proper procedure, which was necessary, was not followed with respect to the reduction and the applicable regulation, 38 C.F.R. § 3.344, was not properly applied.  Accordingly, the action to reduce the rating is void, and the 100 percent evaluation for asthma is restored as though the reduction had not occurred.  See 38 C.F.R. § 3.344; see also Greyzck v. West, 12 Vet. App. 288, 292 (1999) (when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio); Brown v. Brown, 5 Vet. App. 413, 420 (1993). 

The Board notes that restoration of the 100 percent rating, effective February 1, 2006, has rendered the increased rating claim for asthma moot.  


ORDER

Restoration of a 100 percent rating, effective February 1, 2006, for asthma is granted.



____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs