Citation Nr: 18151158 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-40 928 DATE: November 16, 2018 ORDER The 40 percent rating for diabetes mellitus is restored effective January 1, 2014. FINDING OF FACT The lay and medical evidence of record does not show actual improvement in the Veteran’s diabetes mellitus or his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The rating reduction for diabetes mellitus from 40 percent to 20 percent effective January 1, 2014 was not proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.13, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1967 to July 1969. This matter is on appeal from a January 2014 rating decision. Whether the rating reduction from 40 percent to 20 percent effective January 1, 2014 for diabetes mellitus was proper The Veteran disputes the propriety of the reduction of his disability rating for diabetes mellitus from 40 percent to 20 percent. He specifically contends that his diabetes mellitus has not improved and that it has only continued to worsen with time. It is well established that VA cannot reduce a veteran’s disability rating without first finding that the service-connected disability has improved to the point that the veteran is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); see also Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 421 (1993). 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. In a rating reduction case, VA has the burden of establishing that the disability has improved. In determining whether a reduction was proper, the Board must focus upon evidence available to the Regional Office (RO) at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition has actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The Veteran’s diabetes mellitus is currently rated under Diagnostic Code 7913. 38 C.F.R. § 4.119. A rating of 20 percent requires daily injections of insulin and a restricted diet, while a rating of 40 percent requires insulin, restricted diet, and regulation of activities. By way of background, the Veteran was granted service connection for diabetes mellitus in a February 2005 rating decision and assigned a 20 percent rating. In February 2011, the RO inferred a claim for an increased rating based on medical evidence showing a worsening of the Veteran’s diabetes mellitus. The Veteran underwent a VA examination in June 2010. Upon examination, it was shown that the Veteran’s diabetes mellitus requires insulin, restricted diet, and regulation of activities. Specifically, the examination report noted that the Veteran “avoids strenuous activities secondary to high dose Lantus and 3 times daily dose of NovoLog.” Based on the examination findings, a February 2011 rating decision granted the Veteran a 40 percent rating for diabetes mellitus effective June 11, 2010. The Veteran filed a claim for an increased rating for his diabetes mellitus in April 2012 and he underwent a VA examination in July 2012. On the examination report it was noted that the Veteran’s diabetes is treated with one 60-unit dose of Lantus and three doses of NovoLog per day, which is the same course of insulin treatment he was taking at the time of the June 2010 VA examination. However, the examiner indicated that the Veteran did not require regulation of activities. Based on this finding, the RO determined that the Veteran’s diabetes mellitus showed some improvement and the claim for an increased rating was denied in a September 2012 rating decision. The Veteran was notified in a May 2013 letter that VA was reviewing the current severity of his diabetes mellitus and that he would be scheduled for a VA examination. A VA examination was scheduled for July 2013, however, the Veteran failed to report. In an October 2013 rating decision, the RO proposed to reduce the Veteran’s rating for diabetes mellitus from 40 percent to 20 percent because he failed to report for the scheduled VA examination without good cause. The Veteran was notified that he had 60 days to dispute the proposed reduction by submitted additional evidence. As nothing was received from the Veteran within 60 days, a January 2014 rating decision effectuated the proposed rating reduction effective January 1, 2014. The Veteran appealed this rating decision, and has since argued that he did not know about the scheduled VA examination. The Veteran was properly notified of the proposed rating reduction, in conformity with the provisions of 38 C.F.R. § 3.105 (e). The Board finds that the RO properly applied the regulations concerning the procedure for notification of reduction in ratings. The question that remains is whether the RO correctly applied the substantive law and regulations regarding reductions. For the following reasons, the Board finds that the rating reduction of the Veteran’s diabetes mellitus was improper as the competent lay and medical evidence of record does not show an actual improvement in the Veteran’s diabetes mellitus or his ability to function under the ordinary conditions of life and work. In this regard, the Board notes that at the June 2010 examination, it was found that the Veteran had to regulate his activities by avoiding strenuous activity due to the “high dose” of insulin he takes every day. However, at the July 2012 examination, the Veteran was found to be taking the same dosage of daily insulin as he was in June 2010. Therefore, it follows that he would still be required to avoid strenuous activity, even though this was not noted on the examination report. The Board finds that this discrepancy is likely attributed to a difference in the thoroughness of the examination or in the examiners’ use of descriptive terms, as there is no other evidence from the examination report or the Veteran’s lay statements that there was any actual change, for better or worse, in the Veteran’s condition. See 38 C.F.R. § 4.13. Moreover, the Veteran’s VA treatment records show that, since the July 2012 VA examination, his dosage of Lantus has been increased from 60 units to 100 units per day. In May 2016, his VA physician stated that his diabetes is “not well-controlled” as his hemoglobin A1C levels have remained elevated. This medical evidence does not indicate that the Veteran’s diabetes mellitus has shown any sustained improvement at any time since the reduction took effect. (CONTINUED ON NEXT PAGE) Considering the above evidence of record, the Board finds that actual, sustained improvement of the Veteran’s diabetes mellitus or his ability to function under the ordinary conditions of life and work have not been shown. Accordingly, the Board finds that the reduction of the Veteran’s diabetes mellitus from 40 percent to 20 percent was improper, and the prior rating must be restored effective January 1, 2014. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel