Citation Nr: 18152804 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-28 847 DATE: November 27, 2018 ORDER Entitlement to a restoration of a 30 percent rating for gastroesophageal reflux disease (GERD) with diverticulitis is granted. FINDINGS OF FACT 1. A February 2014 rating decision reduced the disability rating for the Veteran’s service-connected GERD with diverticulitis from 30 percent to 10 percent, effective January 21, 2014. 2. As of January 21, 2014, the 30 percent disability rating for the Veteran’s service-connected GERD with diverticulitis had been in effect for less than five years. 3. The evidence at the time of the February 2014 rating decision did not establish that the Veteran’s GERD with diverticulitis had materially improved. CONCLUSION OF LAW The criteria for a reduction in a disability rating for a GERD with diverticulitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.114, Diagnostic Codes (DC) 7319-7346. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1982 to January 1986, from December 1986 to April 1995, and from May 1999 to January 2007. The April 2017 Supplemental Statement of the Case (SSOC) discussed entitlement to an increased rating in excess of 10 percent for the Veteran’s GERD with diverticulitis. During the September 2018, the Veteran expressed that he desired an increased rating in excess of 10 percent for his GERD with diverticulitis. 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 April 2017 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 GERD with diverticulitis if he wishes to seek related compensation benefits. Entitlement to a restoration of a 10 percent rating for GERD with diverticulitis 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. Here, the reduction of the rating of the Veteran’s GERD with diverticulitis did not result in a reduction of compensation payments; therefore, VA was not required to issue a rating decision proposal. 38 C.F.R. § 3.105(e). 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 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 30 percent rating for GERD with diverticulitis that had been assigned prior to January 21, 2014. The rating in question was in effect from May 15, 2011 to January 21, 2014, 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 GERD with diverticulitis has actually occurred; and, (2) that the improvement reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The Veteran’s disability has been evaluated under a hyphenated DC of 7319-7346. Under DC 7319, which addresses irritable colon syndrome, a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319. Under DC 7346, which addresses hiatal hernia, a 10 percent evaluation where there are two or more of the symptoms of a 30 percent evaluation with less severity. A 30 percent rating for a hiatal hernia is assigned with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114, DC 7346. In a March 2007 rating decision, the Veteran was granted service connection for GERD with diverticulitis and assigned a 10 percent evaluation, effective February 1, 2007. Rating decisions in April 2010 and March 2011 continued the 10 percent evaluation. In an October 2011 rating decision, the Veteran was assigned a 30 percent rating for his service-connected GERD with diverticulitis. The grant of the 30 percent rating was based on findings in a September 2011 VA examination report. The September 2011 VA examiner noted that the Veteran’s GERD, irritable bowel syndrome, and diverticulitis, either individually or together, caused near constant gastrointestinal upset, heartburn, indigestion, frequent loose stools and abdominal pain. The examiner noted that all of these conditions are aggravated by emotional stress and the Veteran’s chronic pain condition. Based on the Veteran’s report of symptoms of persistent recurrent epigastric distress, pyrosis, reflux, regurgitation, and substernal arm or shoulder pain, along with the September 2011 examiner’s description of how the Veteran’s symptoms affect his health the RO granted an increased evaluation of 30 percent. A February 2014 rating decision reduced the disability rating for the Veteran’s service-connected GERD with diverticulitis from 30 percent to 10 percent, effective January 21, 2014. The 10 percent rating was based upon findings in a January 2014 VA examination report and VA treatment records, which showed that medication significantly resolved the Veteran’s GERD symptoms. After a careful review of the evidence of record, the Board finds that the reduction was not proper and that restoration of the 30 percent rating for GERD with diverticulitis is warranted. The reasons for this determination follow. The February 2014 rating decision relied upon the January 2014 VA examiner’s observation of improvement in the Veteran’s disability due to the use of medication. The rating criteria for GERD with diverticulitis do not contemplate the use of medication, and as such, the ameliorative effects of medication cannot be considered as evidence of improvement of the disability. The evidence does not otherwise demonstrate the necessary findings with or without medication. Under the circumstances, and without regard to any ameliorative effects of the Veteran’s medication during the relevant time period, the Board cannot conclude that the greater weight of the evidence reflects a true improvement in the Veteran’s impairment for functioning under the ordinary conditions of life and work as a result of service-related GERD with diverticulitis such that a 10 percent rating more accurately reflects the Veteran’s disability picture. Thus, taking into consideration the totality of the evidence, the Board finds that the reduction in the evaluation for the Veteran’s GERD with diverticulitis was not proper. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 C.F.R. §§ 3.102, 4.2. Accordingly, restoration of the 30 percent rating for GERD with diverticulitis is granted, effective from the January 21, 2014, date of reduction. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel