Citation Nr: 18151571 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-36 693 DATE: November 19, 2018 ORDER The reduction in rating for hypertension with decreased kidney function was not proper; restoration of the 60 percent rating is granted, effective May 1, 2010. FINDING OF FACT The RO’s decision to reduce the Veteran’s rating for hypertension with decreased kidney function does not reflect consideration of whether the noted improvement reflected improvement in the Veteran’s ability to function in the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in rating from 60 percent to 0 percent, effective May 1, 2010, for hypertension with decreased kidney function, is void ab initio, and restored, effective from that date. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.10, 4.13 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Chicago, Illinois. The Veteran submitted correspondence in March 2011 requesting to reschedule his hearing date due to weather conditions. The RO sent a clarification letter in May 2014 indicating that it was unclear as to why the Veteran needed a hearing or which claim the hearing was in connection to. In October 2015, the Veteran submitted a timely Substantive Appeal, VA Form 9, and indicated that he did not want an optional Board hearing. As such, there are no pending hearing requests. Reduction A Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran’s disability rating, VA is required to comply with several 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 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). Generally, 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 proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified of the contemplated action and furnished detailed reasons therefore. 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). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Under 38 C.F.R. § 3.344(a) and (b), VA must find the following before reducing a rating: (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. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993). The provisions of 38 C.F.R. § 3.344(a) and (b) further provide certain procedural protections to a Veteran in regard to reductions of rating ratings. As noted above, the regulation is applicable if the rating was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. 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 rating; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted. See Brown, supra; Kitchens, 7 Vet. App. 320 (1995). As an initial matter, 38 C.F.R. § 3.344(a) and (b) are not applicable in this case. The Veteran’s 60 percent rating for his hypertension was assigned beginning February 14, 2008. Thus, the 60 percent rating was not in effect for greater than 5 years as of December 1, 2010. The Board finds that the proper findings for rating reductions were not made in this case. Specifically, the Board notes that under Faust, two findings are necessary in this case in order for the reductions to be proper: (1) that an improvement in the disability has actually occurred; and, (2) that improvement reflects an improvement in the Veteran’s ability to function under the ordinary conditions of the Veteran’s life and work. The Board notes that the Veteran’s 60 percent evaluation for his hypertension with decreased kidney function was assigned based on the findings of an increase in blood pressure readings and a definite decrease in kidney function with creatinine level of 1/5/1.3mb% and blood urea nitrogen levels of 25/21mg%. In the October 2010 rating decision that proposed the reduction and the February 2011 rating decision that finalized the reduction, the RO found that the Veteran’s hypertension was not shown to be unstable with rising creatinine and urea nitrogen levels. An October 2010 examination showed these levels to be normal and the examiner noted normal renal function. As such, the Board finds that the first finding under Faust was properly made. However, at the time of the reduction, the Board does not find that adequate consideration was given to the issue of whether there was an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. More specifically, the action to reduce the ratings did not address these disabilities in the context of the Veteran’s functioning in life and work. Therefore, the Board is unable to adequately assess the propriety of the reduction in this case with respect to the second prong under Faust, namely whether the improvement reflected an improvement in the Veteran’s ability to function under ordinary conditions of life and work. Without such an explicit finding, the Board finds that it cannot properly analyze the rating-reduction issue currently on appeal. (Continued on the next page)   The Board therefore finds that the reduction of the Veteran’s disability rating for his hypertension with decreased kidney function is void ab initio due to the lack of proper findings as to the second prong under Faust as noted above. The Veteran’s 60 percent rating for his disability is restored. See 38 C.F.R. § 3.344(c); Faust, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel