Citation Nr: 18150601 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-28 362 DATE: November 15, 2018 ORDER Entitlement to a restoration of a 100 percent rating for status post kidney transplant associated with diabetes mellitus with erectile dysfunction (renal disability) is denied. FINDINGS OF FACT 1. A December 2010 rating decision reduced the disability rating for the Veteran’s service-connected renal disability from 100 percent to 30 percent, effective March 1, 2011. 2. As of March 1, 2011, the 100 percent disability rating for the Veteran’s service-connected renal disability had been in effect for less than five years. 3. Evidence at the time of the reduction demonstrated an overall improvement in the Veteran’s renal disability and the disability picture more approximated the reduced rating of 30 percent. Evidence at the time of the reduction demonstrated that the improvement in the Veteran’s renal disability reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for a reduction in a disability rating for a renal disability have been met as of March 1, 2011. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.115(b), Diagnostic Code (DC) 7530. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1965 to June 1991. In the December 2015 DRO Hearing, the Veteran requested a VA examination to assess the current severity of his renal disability. In a February 2016 private Disability and Benefits Questionnaire (DBQ), the Veteran’s physician submitted evidence regarding the Veteran’s renal disability. The May 2016 Supplemental Statement of the Case (SSOC) discussed entitlement to an increased rating in excess of 30 percent for the Veteran’s renal disability. However, without a rating decision, a notice of disagreement, a statement of the case, and a substantive appeal, the issue is not properly on appeal, and the May 2016 SSOC cannot be the basis of a preliminary decision. See 38 C.F.R. § 19.31(a) (“In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case.”). Accordingly, the Veteran must separately file a claim for an increased rating for his renal disability if he wishes to seek an increased rating for his service-connected disability. Entitlement to a restoration of a 100 percent rating for status post kidney transplant associated with diabetes mellitus with erectile dysfunction. When reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at the latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). Here, in a July 2010 rating decision, it was proposed to reduce the 100 percent rating for the Veteran’s renal disability to a 30 percent rating. The Veteran was notified of this proposal in an August 2, 2010 letter. In a December 2010 rating decision, the Veteran was assigned a 30 percent rating for his renal disability, effective March 1, 2011. As such, the requirements of 38 C.F.R. § 3.105(e) have been fulfilled. In addition, the provisions of 38 C.F.R. § 3.344 provide that rating agencies will handle cases affected by any change of medical findings or diagnosis, in order to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 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. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. In any rating-reduction case, where 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 the veteran’s life. However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level for five years or more and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating, where the disability rating has continued at the same level for less than five years. 38 C.F.R. § 3.344. The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c). A rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155. Moreover, for ratings that have been in effect for five years or more, reduction is warranted only when reexamination discloses sustained and material improvement that will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a)-(b). Examinations thus usually are the comparison point for determining whether there has been improvement. Those examinations forming the basis for a reduction must be adequate, certainly as comprehensive as the examination on which the existing rating was based. Furthermore, VA must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a)-(b). In determining whether a reduction was proper, the Board must focus upon 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 actually improved. However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. The Veteran seeks restoration of the 100 percent rating for renal disability that had been assigned prior to March 1, 2011. The rating in question was in effect from July 27, 2006 to March 1, 2011, a period of less than five years. Reexaminations disclosing improvement, physical or mental, in service-connected disabilities will warrant a reduction in rating where the disability rating has continued at the same level for less than five years. 38 C.F.R. § 3.344. The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, as is the case here, the analysis is conducted under 38 C.F.R. § 3.344(c). In this case, two findings are necessary in order for the reduction to be proper: (1) that an improvement in the Veteran’s renal disability has actually occurred; and, (2) that improvement reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. In an April 2007 rating decision, the Veteran was granted service connection for his renal disability, and a 100 percent rating was assigned. The grant of service connection and the 100 percent rating were based on findings in a February 2007 VA examination report. According to the February 2007 VA examination, the Veteran required dialysis three times a week and was found to have a serum creatinine level of 13.8mg/dl. In a July 2010 rating decision, it was proposed to reduce the 100 percent rating for the Veteran’s renal disability to a 30 percent rating. In a December 2010 rating decision, the Veteran was assigned a 30 percent rating for his renal disability, effective March 1, 2011. The 30 percent rating was based upon findings in a May 2010 VA examination report, which showed that the Veteran no longer required dialysis and was found to have a serum creatinine level of 1.1mg/dl. After a careful review of the evidence of record, the Board finds that the reduction was proper and that restoration of the 100 percent rating for renal disability is not warranted. The reasons for this determination follow. The Board finds that the May 2010 examination was thorough, fully adequate, and complete, and was at least as thorough, fully adequate, and complete as the February 2007 examination upon which the 100 percent rating was originally assigned for the Veteran’s renal disability. For example, both examinations noted the status of the Veteran’s dialysis treatments and his creatinine measurements. The Board finds that the May 2010 examination shows actual improvement in the Veteran’s renal disability. The record shows that the Veteran warranted the 100 percent disability rating at the time it was granted in the April 2007 rating decision. However, the evidence also shows that his prognosis and serum creatinine levels significantly improved by the time of his May 2010 VA examination. For example, results from the May 2010 VA examination, show that the Veteran received a kidney transplant in November 2008, no longer required dialysis, and was found to have a current serum creatinine level of 1.1mg/dl, although he did have slight edema, which warrants a 30 percent rating. Accordingly, the Board finds that material improvement in the Veteran’s renal disability has occurred. The Board notes that the improvement in the Veteran’s renal disability also reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. In the July 2010 rating decision noted “excellent results” from the Veteran’s kidney transplant, including normalized laboratory results and that the Veteran’s hypertension is now controlled. The May 2010 VA examination noted that the Veteran no longer was undergoing dialysis. These facts support a finding that the improvement in the Veteran’s renal disability reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. As mentioned above, post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated. A September 2010 private medical record from the Veteran’s treatment provider, D.G., stated that the Veteran’s kidney function had improved since the November 2008 surgery. The Board notes a February 2011 letter from the Veteran’s physician, Dr. A.R, suggested that the Veteran may develop future problems with his kidney, however assigns this record no probative value, due to its reliance on a speculative opinion. An October 2015 letter from Dr. A.R. noted that the Veteran’s laboratory results demonstrated microalbuminuria and proteinuria. However, as the letter specifically shows that the Veteran’s laboratory results demonstrate microalbuminuria instead of albuminuria, and does not indicate that dialysis is necessary, approximately seven years after the Veteran’s transplant, the Board finds that the record still supports that the improvement in the Veteran’s renal disability reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Although the Veteran is competent to state that his symptoms have not improved, and his statements are credible, the Veteran’s contentions are outweighed by objective medical evidence. Disability ratings for renal dysfunction are based upon laboratory results and clinical evaluation, and cannot be derived from subjective reports of symptoms. Based on this evidentiary posture, the Board finds that the reduction in the Veteran’s rating for his renal disability from 100 percent to 30 percent effective March 1, 2011, was proper. Therefore, the Board finds that the preponderance of the evidence is against the claim and restoration of the 100 percent rating for renal disability is not warranted. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel