Citation Nr: 18146091 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 12-09 539 DATE: October 30, 2018 ORDER The reduction of the 10 percent disability rating to 0 percent for the service-connected left ankle scar, effective from May 5, 2009, was not proper; restoration of the 10 percent of the disability rating for the left ankle scar from May 5, 2009 to April 11, 2018 is granted. Special monthly compensation (SMC) based on the need for aid and attendance of another person for the Veteran’s spouse from March 31, 2009 to December 14, 2017 is granted. FINDINGS OF FACT 1. A March 2010 rating decision reduced the rating for the service-connected left ankle scar from 10 percent to 0 percent, effective May 5, 2009; the rating reduction did not affect the Veteran's overall disability rating. 2. As of May 5, 2009, the 10 percent rating for the service-connected left ankle scar had been in effect for less than five years. 3. At the time that the reduction in the disability rating was effectuated, the service-connected left ankle scar had not undergone sustained improvement. 4. From March 31, 2009 to December 14, 2017, the Veteran had a combined 60 percent disability rating, and the Veteran’s spouse required the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the service-connected left ankle scar from 10 percent to 0 percent was not proper, and the 10 percent disability rating is restored from May 5, 2009 to April 11, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Code (DC) 7804. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for SMC based on the need for the regular aid and attendance of another person for the Veteran’s spouse are met for the period from March 31, 2009 to December 14, 2017. 38 U.S.C. §§ 1114, 1115, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service in the U.S. Army from January 1951 to November 1952. This matter is on appeal from a March 2010 rating decision. In August 2017, the Board denied service connection for bilateral hearing loss, denied increased ratings for a low back disability, left foot disability, and left ankle arthritis, and denied a TDIU. The Board also remanded the special monthly compensation (SMC) and rating reduction appeals for outstanding VA treatment records, clarification of the current rating of the service-connected left ankle scar, a VA aid and attendance examination for the Veteran’s spouse, and readjudication of the appeals. Pursuant to the Board’s remand directives, additional VA treatment records were obtained in August 2017 and April 2018, and a VA aid and attendance examination was provided in December 2017. In June 2018, the appeals were readjudicated. The RO granted SMC based on aid and attendance for the Veteran’s spouse effective from December 14, 2017 and granted a 0 percent rating for the service-connected left ankle scar effective from April 11, 2018. Because the grant of SMC based on aid and attendance and the grant of the 0 percent rating for the service-connected left ankle scar did not apply to the entire rating period at issue for the appeals, the Board finds that the questions of whether the rating reduction for the left ankle scar was proper and whether SMC based on aid and attendance was warranted from March 31, 2009 to December 14, 2017 remain in controversy and are on appeal. 1. Rating Reduction Criteria and Restoration Analysis In March 2010, the RO reduced the 10 percent rating for the service-connected left ankle scar to 0 percent effective from May 5, 2009. Because the rating decision did not affect the overall disability rating, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91; Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). At the time that the rating reduction became effective, May 5, 2009, the 10 percent rating for the service-connected left ankle scar 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. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See 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). The 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. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. At the time of the rating reduction, the service-connected left ankle scar had been rated under the criteria found at 38 C.F.R § 4.118, DC 7804 for painful or unstable scars. Under DC 7804, a 10 percent rating is warranted for one or two scars that are painful or unstable. A 20 percent rating is warranted for three or four scars that are painful or unstable. A 30 percent rating is warranted for five or more scars that are painful or unstable. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. In this case, the Board finds that the weight of the evidence did not demonstrate actual improvement of the service-connected left ankle scar under the ordinary conditions of life and work at the time of the rating reduction; therefore, the rating reduction was not proper, and the criteria for restoration of a 10 percent rating for the left ankle scar, effective from May 5, 2009, are met. Historically, in November 2008, the RO granted service connection for a painful left ankle scar with a 10 percent schedular rating effective from March 31, 2008 based on the July 2008 VA examination findings noting one surgical scar of the left ankle measuring approximately 1/8 inch by 2 1/2 inches with mild tenderness and mild adjacent numbness. Because the evidence showed one painful surgical scar on the left ankle, the RO determined that a 10 percent schedular rating under DC 7804 was warranted. At the time of the March 2010 rating reduction decision, the May 2009 VA examiner wrote that the service-connected left ankle surgical scar was nontender and not symptomatic in any way. Because the disability picture as shown by the May 2009 VA examination findings indicated that the criteria for a 10 percent rating under DC 7804 were no longer met, the RO awarded a noncompensable percent rating under DC 7804; however, this was the only evidence then of record suggesting that the left ankle scar had improved. Nevertheless, in the April 2010 Notice of Disagreement received approximately one month after the March 2010 rating decision reducing the rating for the left ankle scar, the Veteran disagreed that the scar was nontender and explained that he felt an “electric shock” when something touched the left ankle scar, which is evidence suggesting a painful left ankle scar. Also, at the post-reduction July 2016 VA examination, the left ankle scar was noted to be sensitive with rubbing, which is a symptom analogous to and consistent with pain. At the post-reduction April 2018 VA examination, the Veteran reported that the left ankle scar was painful. In consideration thereof, the Board finds that the preponderance of the evidence does not demonstrate that the service-connected left ankle scar underwent actual improvement under the ordinary conditions of life and work at the time of the March 2010 rating reduction decision. Because the burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence, and the evidence of record in this case does not show actual improvement in the service-connected left ankle scar at the time of the March 2010 rating reduction, the Board finds that the reduction of the 10 percent rating to 0 percent rating effective from May 5, 2009 was not proper; therefore, restoration of the 10 percent disability rating under DC 7804 is warranted from May 5, 2009 to April 11, 2018. SMC Aid and Attendance Legal Authority Any veteran whose disability is rated not less than 30 percent is entitled to increased compensation by reason of the veteran’s spouse being in need of aid and attendance. 38 U.S.C. § 1115; 38 C.F.R. § 3.351(a)(2). Compensation at the aid and attendance rate is payable when the veteran’s spouse is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; or a patient in a nursing home because of mental or physical incapacity; or there is a factual need for aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one's daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 38 C.F.R. § 3.352 (a). 2. SMC Aid and Attendance Analysis The Veteran seeks increased compensation by reason of his spouse having been in regular need of aid and attendance. He contends that his spouse was blind, was unable to perform various activities of daily living, including cooking, driving, and various household chores, and required the regular assistance of another person. Because SMC at the aid and attendance rate was already granted for the period from December 14, 2017 to March 1, 2018 (i.e., SMC was terminated in March 2018 due to the spouse’s death) based on the spouse’s regular need for aid and attendance, the SMC analysis below will focus solely on the period from March 31, 2009 (i.e., the date of the claim) to December 14, 2017. After review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the criteria for SMC based on the spousal need for the aid and attendance of another were met for the period from March 31, 2009 to December 14, 2017. For the entire period at issue, the Veteran had an overall 60 percent disability rating, and his spouse required the regular aid and attendance of another person. At the December 2017 VA aid and attendance examination, the VA examiner noted that the Veteran’s spouse had a diagnosis of severe age-related macular degeneration of both eyes. The December 2017 VA examiner noted that the Veteran’s spouse could perform housework and all self-care functions but was not able to cook due to impaired vision, required a wheeled walker for ambulation, and demonstrated abnormal weight-bearing and propulsion due to right hip degenerative joint disease of the and left hip bursitis. The December 2017 VA examiner opined that the spouse had no cognitive impairment that would hinder the ability to manage her own financial affairs but the vision problem precluded her from actually writing out checks and paying bills on the computer. This evidence indicates a factual need for regular aid and attendance for the period. Based on the December 2017 VA examination findings, the RO granted SMC at the aid and attendance rate effective from December 14, 2017; however, the evidence shows that there was a need for aid and attendance for the Veteran’s spouse prior to December 14, 2017 (i.e., from March 31, 2009 to December 14, 2017). On the April 2010 VA Form 21-4138, the Veteran wrote that his spouse was legally blind and relied on him to do the cooking, cleaning, and driving, as well as navigating any potential safety hazards. On the April 2012 VA Form 9, the Veteran similarly wrote that his spouse was blind and was not able to perform several household activities such as cooking, cleaning, driving, and shopping, so he had to drive her to doctor’s appointments and provide other assistance to her. The Veteran’s description of his spouse’s need for the aid and attendance of another person is consistent with other evidence of record and is deemed credible. Although the April 2010 aid and attendance disability benefits questionnaire from a private medical provider was submitted by the Veteran, it did not answer many of the questions posed about the severity of the spouse’s impairment or the restrictions on activities of daily living, so it is of minimal probative value and is outweighed by the December 2017 VA examination findings. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s spouse had a factual need for the regular aid or attendance of another person from March 31, 2009 to December 14, 2017; therefore, the criteria for SMC benefits based on the spouse’s need for regular aid and attendance of another person have been met for the period. (Continued on the next page)   Because SMC is granted pursuant to the aid and attendance criteria under 38 U.S.C. § 1115(1)(E), and this represents a greater benefit than an award of SMC based on housebound status, the Veteran may not receive additional benefits under the criteria of 38 U.S.C. § 1521(e) for SMC based on housebound status. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel