Citation Nr: 18146862 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 18-01 747 DATE: November 1, 2018 ORDER The reduction of the disability rating for asthma was not warranted; a restoration of the 30 percent rating from November 30, 2016, is granted. FINDING OF FACT The evidence used to reduce the rating for asthma from 30 to 10 percent did not show improvement in this disability that would be maintained under the ordinary conditions of life and work. CONCLUSION OF LAW Since the reduction of rating for the service-connected asthma from 30 percent disabling to 10 percent disabling was improper, the criteria are met for restoration of the 30 percent rating, effective December 1, 2016, the date it was reduced. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.10, 4.85; Diagnostic Code 6602 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1985 to December 2005. Whether the reduction of the disability rating for asthma, from 30 percent to 10 percent, effective January 1, 2006, to November 30, 2016, was proper. The Board observes that the Regional Office (RO) proposed to reduce the Veteran’s 30 percent evaluation for asthma to 10 percent in a May 2016 rating decision. This reduction was accomplished in a September 2016 rating decision, effective December 1, 2016. The Board notes that 38 C.F.R. § 3.105 outlines a set of procedural safeguards governing rating reductions, which are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the instant case, the RO procedurally complied with 38 C.F.R. § 3.105 regarding the manner in which appellant was given notice of the proposed rating reduction and the implementation of that reduction. Notice of the proposed rating reduction, including the evidentiary basis for this proposal, was provided to the Veteran in June 2016. This notice also informed her of her rights to submit additional evidence to show that the compensation payments should not be reduced and the option to request a pre-decisional personal hearing. As the RO has fulfilled its procedural requirements set forth under 38 C.F.R. § 3.105 for rating reductions, the Board will now consider the propriety of the rating reduction. At the time the reduction became effective, December 1, 2016, the 30 percent rating for the Veteran’s asthma had been continuously in effect since January 1, 2006, a period of over 10 years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable. They provide that where a Veteran’s schedular rating has been both continuous and stable for five years or more, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating that has been in effect for more than 5 years 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. The rating agency must also take into consideration whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 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 he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted. See Brown v. Brown, supra; Kitchens v. Brown, 7 Vet. App. 320 (1995). The 30 percent rating for asthma was assigned by applying the criteria set forth in VA’s Rating Schedule. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s asthma has been rated under 38 C.F.R. Diagnostic Code 6600, which provides a 10 percent rating for forced expiratory volume in one second (FEV-1) of 71 to 80 percent predicted; or FEV-1 to forced vital capacity (FEV-1/FVC) of 71 to 80 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO(SB)) of 66 to 80 percent predicted. A 30 percent rating requires FEV-1 of 56 to 70 percent predicted; or FEV-1/FVC of 56 to 70 percent; or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO(SB)) of 56 to 65 percent predicted. Here, the Veteran’s initial assigned evaluation of 30 percent was based on a September 2005 VA examination, which also included pulmonary function testing (PFT). At that time, the Veteran’s pre-bronchodilator FEV-1 was 86 percent predicted, FVC was 100 percent predicted and FEV-1/FVC was 71 percent predicted. Chest x-rays were within normal limits. The examiner commented that there was no significant change in FEV-1 post-bronchodilator and diagnosed the Veteran with mild asthma with no evidence of restrictive airway disease. The relevant evidence of record also includes a January 2014 VA examination. The PFTs showed that pre-bronchodilator FEV-1 was 88 percent predicted, FVC was 97 percent predicted and FEV-1/FVC was 76.5 percent predicted. Chest X-rays were within normal limits. The examiner indicated that the most accurate test that reflected the Veteran’s pulmonary function was FEV-1. The examiner did not test the DLCO or conduct post-bronchodilator testing because the pre-bronchodilator PFT results were within normal levels. Moreover, the examiner noted that the Veteran did not have any other respiratory condition. Additionally, the Veteran had another VA examination in April 2016, which was the basis for the reduction. The Veteran’s pre-bronchodilator FEV-1 was 89 percent predicted, FVC was 95 percent predicted and FEV-1/FVC was 73 percent predicted. The examiner indicated that the test that most accurately reflected the Veteran’s pulmonary function was FEV-1/FVC. Chest X-rays were within normal limits. The examiner did not test the DLCO or conduct post-bronchodilator testing because the pre-bronchodilator PFT results were within normal levels. There was also no other diagnosed respiratory condition. Further, VA medical treatment records reveal that the Veteran had been treated in urgent care on several occasions for exacerbation of her asthma in addition to her regular visits for continued treatment of her asthma. See VA medical records dated February 2014, February 2015 and June 2016. Additionally, a February 2015 VA medical treatment record noted that she had a granuloma on her lungs. These treatment records indicated that the Veteran was prescribed Singulair and Combivent. Comparing the results of the January 2014 VA compensation examination with her more recent April 2016 VA compensation examination does not support the conclusion that there has been improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. The RO appears to have concluded that her disability improved, when, in actuality, it did not. Except for the pre-bronchodilator FEV-1 result at the April 2016 VA examination, her pre-bronchodilator FVC and FEV-1/FVC were worse that the recorded PFTs at the January 2014 VA examination. In fact, the April 2016 VA examination PFT results more closely approximates the September 2005 VA examination. It, therefore, is unclear the basis of the RO’s subsequent determination that the Veteran’s asthma had substantially and materially improved to warrant a reduction. The Board has found that not all the evidence of record supports the reduction in evaluation from 30 percent to 10 percent for the Veteran’s asthma. As such, the reduction of the 30 percent rating to 10 percent effective from December 1, 2016, was not proper. Therefore, the requirements for restoration have been met. See generally 38 C.F.R. § 3.344. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel