Citation Nr: 18153555 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-38 792A DATE: November 28, 2018 ORDER The reduction in evaluation for a scar on the Veteran’s right wrist dorsum was not proper; restoration of the 10 percent evaluation is granted, effective July 1, 2012. REMANDED Entitlement to service connection for an undiagnosed disorder that manifests as sleep impairment, chronic fatigue, and headaches is remanded. FINDING OF FACT The RO’s decision to reduce the Veteran’s right wrist dorsum scar evaluation does not reflect consideration of the provisions of 38 C.F.R. § 3.344, particularly whether there was actually improvement in the Veteran’s right wrist dorsum scar. CONCLUSION OF LAW The reduction in the rating assigned for right wrist dorsum scar from 10 percent to 0 percent, effective July 1, 2012, was not proper. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.102, 3.344(c), 4.1, 4.2, 4.10, 4.118, Diagnostic Code 7819-7804 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1979 to December 2000. In his November 2015, VA Form 9, Substantive Appeal, the Veteran indicated that he would like a Video Conference Board Hearing. In an October 2016, Statement in Support of Claim, the Veteran indicated that he wanted to continue his appeal but no longer wanted a Video Conference Board Hearing. Based on this written statement, the Veteran’s request for a hearing is deemed withdrawn. Whether the Reduction in the Veteran’s Evaluation for Right Wrist Dorsum Scar Was Proper In cases where a veteran’s disability rating is reduced, the Board must determine whether the reduction was proper. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). A reduction is void ab initio when the Board affirms a reduction of a veteran’s disability rating without observing the applicable VA regulations. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). “Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating” for a rating that has been in effect for less than five years. 38 C.F.R. § 3.344(c). When reducing a disability rating based on the severity of a veteran’s condition, the burden falls on the Department of Veterans Affairs (VA) to show “material improvement” in the veteran’s condition from the time of the previous rating examination that assigned the veteran’s rating. Ternus v. Brown, 6 Vet. App. 370, 376 (1994). “[I]n any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Brown v. Brown, 5 Vet. App. 413, 421 (1993) (discussing 38 C.F.R. §§ 4.10 and 4.2). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In a December 2008 rating decision, the RO increased the Veteran’s right wrist dorsum scar evaluation from 0 percent to 10 percent effective August 27, 2008 based the date of the Veteran’s claim for an increased evaluation and a September 27, 2008 VA examination. The September 2008 VA examination noted a surgical scar was painful on palpation and weakened grip due to pain. In a September 29, 2011 rating decision, a VA Regional Office (RO) proposed reducing the Veteran’s evaluation to 0 percent based on an October 2010 VA examination showing that the scar was neither painful nor unstable. In an October 7, 2011 correspondence, the RO notified the Veteran of the proposed rating action, informed him that it would lower his combined evaluation from 90 percent to 80 percent, and provided him with 60 days to submit evidence to show why the RO should not make the proposed reduction. The Veteran did not submit any evidence in response to the October 2011 letter. In an April 10, 2012 rating decision, the RO took final action and reduced the Veteran’s evaluation for 10 percent to 0 percent effective July 1, 2012. The Veteran was notified of the RO’s final rating action in an April 11, 2012 letter. The Veteran initiated the instant appeal of that rating action in an April 2012 Notice of Disagreement. As an initial matter, the Board notes that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e). However, the preponderance of the evidence does not show improvements in the Veteran’s service-connected scar. An October 2010 VA examination states that the Veteran’s scar is neither painful nor unstable. Weakened grip strength was not noted on examination. However, the Veteran stated in his April 2012 Notice of Disagreement that the scar is still painful and itchy, particularly during cold weather. While the Veteran is not competent to identify a specific level of disability, he is competent to report observable symptoms such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). VA treatment records accord with the Veteran’s statement. October 2011 VA treatment records document the Veteran’s reports of pain in his right wrist due to scarring from the removal of the ganglion cyst in his right wrist. November 2013 VA treatment records document the Veteran’s reports of ongoing pain due to the scarring from ganglion cyst removal. The Board affords more probative weight to the Veteran’s April 2012 statement and VA treatment records than the October 2010 VA examination, see Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991), and concludes that the preponderance of evidence indicates that the Veteran’s service connected right wrist dorsum scar has not actually improved. Accordingly, the rating action reducing the evaluation of the Veteran’s right wrist dorsum scar is void, and the 10 percent evaluation for a right wrist dorsum scar is restored as though the reduction had not occurred. See 38 C.F.R. § 3.344(c). REASONS FOR REMAND Entitlement to an Undiagnosed Disorder that Manifests as Sleep Impairment, Chronic Fatigue, and Headaches Is Remanded The Veteran’s active service included service in Southwest Asia in support of Operation Desert Shield and Operation Desert Storm during which the Veteran aided in erecting the facilities needed to support U.S. Air Force operations. In a December 27, 2011 statement, the Veteran sought entitlement to service connection for an undiagnosed disorder, which included sleep disturbances, fatigue, and headaches, contending that it was etiologically related to his service in Southwest Asia. The Veteran was afforded a Gulf War General Medical Examination in February 2012. Physical examination identified nasal obstructions caused by bilateral inferior turbinate hypertrophy. The examiner also noted that the Veteran had allergic rhinitis and opined that it “may very well be” caused by “Gulf War chronic environmental exposure.” The examiner also noted a diagnosis of obstructive sleep apnea and opined that the obstruction of the right nasal passageway was possibly a cause of the Veteran’s obstructive sleep apnea. The examiner identified a markedly elevated left hemidiaphragm that was also objectively documented towards the end of the Veteran’s active air service. The examiner noted March 2011 and July 2011 diagnoses of chronic fatigue syndrome in the Veteran’s VA treatment records, observing that the criteria for those diagnoses was not provided. The examiner also noted a diagnosis of fatigue due to blood-loss and anemia in May 2001 that resolved in June 2001. According to the examiner, the Veteran did not have a current diagnosis for chronic fatigue syndrome. The examiner attributed the Veteran’s headaches to sinusitis, but noted that determining the etiology of the Veteran’s headaches without a polysomnogram report would be speculative. Since his February 2012 examination, the Veteran has filed claims for entitlement to service connection for rhinitis and his paralyzed left diaphragm. In a June 2014 rating decision, RO denied the Veteran’s claim for entitlement to service connection for rhinitis and granted the claim for entitlement to service connection for a paralyzed left diaphragm, evaluating it as 30 percent disabling effective September 3, 2013. The February 2012 examination is not adequate to adjudicate the Veteran’s claim. First, the February 2012 VA examination was incomplete due to employment-related limitations on the Veteran’s availability. Second, the February 2012 VA examiner used equivocal language in stating the opinions reached and noted that he could not determine the etiology of the Veteran’s headaches without resorting to speculation. Third, the February 2012 examination does not address whether the Veteran’s service-connected paralyzed left diaphragm is etiologically related to the Veteran’s complaints of sleep disturbances, headaches, or fatigue. A new VA examination is therefore necessary. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep disturbances, headaches and fatigue. The examiner must opine on the following: (a.) While the Veteran has a current diagnosis for obstructive sleep apnea, the examiner must identify/diagnose any headache- or fatigue-related disorders that presently exist or have existed during the appeal period. (b.) For each sleep-related disorder, to include obstructive sleep apnea, and any diagnosed headache- or fatigue-related disorder, state whether it is at least as likely as not related to an in-service injury, event, or disease. (c.) For each sleep-related disorder and any diagnosed headache- or fatigue-related disorder, state whether it is at least as likely as not (1) proximately due to service-connected left diaphragm paralysis, or (2) aggravated beyond their natural progression by the Veteran’s left diaphragm paralysis. 2. If the determination as to the claim remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel