Citation Nr: 18151946 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-23 971 DATE: November 20, 2018 ORDER The 10 percent disability rating for status-post fracture right fifth finger is restored, effective June 14, 2012, and the appeal is granted. FINDING OF FACT The Veteran’s service-connected right fifth finger disability did not show actual improvement under the normal circumstances of life during the pertinent appeal period. CONCLUSION OF LAW The reduction of the 10 percent rating for the service-connected right fifth finger disability was improper. 38 U.S.C. §§ 1155, 5103, 5103(a), 5112(b)(6) (2012); 38 C.F.R. §§ 3.103(b), 3.105(e), 4.1, 4.2, 4.7, 4.115(a), 4.115(b), Diagnostic Code (DC) 5230 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2000 to November 2004. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2013, the Board remanded this matter and instructed the RO to provide the Veteran with proper notice regarding the reduction. In a May 2016 rating decision, the RO awarded a 10 percent disability rating for the right fifth finger disability, effective April 27, 2016. The reduction of the Veteran’s disability rating for his service-connected right fifth finger disability from 10 percent to a noncompensable rating was improper, and the 10 percent rating is restored prior to April 27, 2016. The Board finds that the reduction of the Veteran’s rating for his service-connected right fifth finger disability from 10 percent to a noncompensable rating was improper, and thus restores the 10 percent rating effective June 14, 2012. Notwithstanding the procedural steps that must be taken, 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) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). Per the instructions of the October 2013 Board remand, the Veteran was notified of the RO’s intent to reduce his rating for his service-connected right fifth finger disability by a letter dated in January 2014. Thereafter, he was afforded an opportunity to have a pre-determination hearing and given at least 60 days in which to present additional evidence. Final action to reduce the rating for his disability was taken pursuant to 38 C.F.R. § 3.105(e) in a May 2014 rating decision. The rating reduction was made effective beginning June 14, 2012. Consequently, the Board finds that the RO did not violate any of the procedures required under 38 C.F.R. § 3.105, as the Veteran was notified of his rights, given an opportunity for a hearing and time to respond, and the rating reduction was made effective no sooner than permitted (“the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires”). 38 C.F.R. § 3.105(e). Therefore, having decided that the process required to reduce the Veteran’s rating was correctly followed by the RO, the next question to be addressed is whether, given the available evidence, a reduction to a noncompensable rating was proper. The Veteran’s right fifth finger disability has been evaluated under 38 C.F.R. § 4.71a, DC 5230. Under DC 5230, a maximum zero percent rating is assigned for any limitation of motion of the ring or little finger (whether on the major (dominant) or minor (non-dominant) hand). 38 C.F.R. § 4.71a. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. For the purpose of rating disability from arthritis, multiple involvements of the metacarpal and carpal joints of the upper extremities are considered groups of minor joints ratable on a parity with major joints. 38 C.F.R. § 4.45 (2017). VA must consider “functional loss” of a musculoskeletal disability separately from consideration under the diagnostic codes; “functional loss” may occur as a result of weakness, fatigability, incoordination, or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As noted in the applicable rating decision, the Veteran’s 10 percent evaluation was based upon a January 2005 VA contract examination report. In that examination report, he reported functional impairment resulting from decreased strength, a weak grip, and constant pain. At a January 2008 VA examination, the Veteran described the daily pain as burning, aching, sharp, and cramping. In an October 2009 VA examination report, the examiner noted pain, limited motion, weakness, and stiffness of the right fifth finger. The Veteran further reported severe flare-ups occurring twice weekly. In July 2012, the RO reduced the Veteran’s disability rating for his right fifth finger disability to a noncompensable rating based upon a June 2012 VA examination. At the time of the examination, he reported experiencing a weak grip, as well as flare-ups occurring twice weekly. The examiner noted limitation of motion of the right fifth finger, as well as pain on movement. Upon consideration of the foregoing evidence, and a comparison of the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 10 percent disability rating versus the demonstrated symptomatology since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust, supra. Rather, the June 2012 VA examination report serves to support the 10 percent evaluation, as it indicates that the Veteran’s symptomatology continued to result in limitation of motion, pain on motion, and weekly flare-ups. Thus, the Board finds that the criteria for a rating of 10 percent have been met pursuant to the DeLuca criteria throughout the period on appeal, based upon the reported symptoms. DeLuca, supra. The above evidence does not show a sustained or actual improvement in the Veteran’s disability. The medical evidence does not show a change in his symptoms, reflecting that the Veteran’s disability picture since June 2012 has not been significantly different from his disability picture at the previous VA examinations, which had been the basis of the 10 percent rating for the right fifth finger disability. Therefore, the Board finds that the reduction of the 10 percent disability rating was improper and that the restoration of the 10 percent rating for service-connected right fifth finger disability is warranted, effective June 14, 2012. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel