Citation Nr: 18156072 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-20 091 DATE: December 6, 2018 ORDER The reduction in disability rating evaluation from 30 percent to noncompensable for acne, effective November 1, 2014, was proper. REMANDED Entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT There has been material improvement in the Veteran’s service-connected acne disability that will be maintained under the conditions of ordinary life. CONCLUSION OF LAW The reduction of the rating for acne disability from 30 percent to noncompensable, effective November 1, 2014, was proper. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2002 to July 2006 and from July 2010 to August 2011. 1. The propriety of a reduction in disability evaluation from 30 percent to noncompensable effective November 1, 2014 for acne The Veteran has challenged the propriety of the rating reduction of the service-connected acne disability from 30 percent to noncompensable as issued in the August 2014 rating decision. After a thorough review of the evidence, the Board finds that the rating reduction was proper. 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). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The RO must find the following in order to reduce an evaluation: (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); Kitchens v. Brown, 7 Vet. App. 320 (1995). In Brown v. Brown, the Court determined that the provisions of 38 C.F.R. § 3.344(a) only apply where the rating to be reduced has continued for five years or more. 5 Vet. App. 413, 416-19 (1993). Nevertheless, the Court noted that 38 C.F.R. §§ 4.10, which provides that “[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment,” and 4.2, which provides that “[e]ach disability must be considered from the point of view of the veteran working or seeking work,” apply generally to all rating reductions. Id. at 421. Hence, the Court concluded that “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.” Id. When a veteran’s disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In the present case, service connection for acne at a 30 percent rating was established in a December 2006 rating decision with an effective date of August 1, 2006. The Veteran initiated an increased rating claim for acne in February 2014. In an April 2014 rating decision, the RO proposed to reduce the disability evaluation of the acne from 30 percent to noncompensable. The Veteran was notified of the proposed reduction in a notification letter dated April 29, 2014. In an August 2014 rating decision, the RO reduced the Veteran’s acne evaluation from 30 percent to noncompensable with an effective date of November 1, 2014. The Veteran timely submitted a notice of disagreement in September 2014 and the RO issued a statement of the case in May 2015 confirming the reduction of acne to a noncompensable level. The Veteran timely appealed. The Board notes that the Veteran’s evaluation was in effect for more than five years at the time of the effectuation of the August 2014 rating decision. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b), which govern the reduction of protected ratings in effect for five years or more, apply in this case. With regard to the merits of the reduction, the Veteran was afforded a VA examination in April 2014 and, after contesting the reduction, in May 2015. The Veteran’s service connection rating of 30 percent was initially based on a November 2006 VA examination. The November 2006 VA examination noted that the Veteran had reported acne prior to active service, but that it had worsened during deployment. The examiner described the Veteran’s treatment regimen as including skin cleansers and prescription medication and that the Veteran’s acne was “moderate to severe cystic acne noted to face/neck,” but that the condition was improving. The examiner observed red inflamed cystic acne to the bilateral cheeks, chin, and neck. The Veteran was afforded a VA examination in January 2012 wherein the examiner assessed the Veteran’s acne as superficial affecting less than 40 percent of his face and neck. There was no scarring or disfigurement. The Veteran reported using gels to control the acne. In response to this examination, the RO issued a rating decision continuing the 30 percent rating with the notation that the condition had improved but that sustained improvement had not been definitively established. The Veteran was afforded a VA exanimation in April 2014 wherein the examiner assessed the Veteran’s acne as superficial. There was no scarring or disfigurement. The Veteran reported using daily facial scrubs to control the acne. The examiner noted that the Veteran reported flare-ups about every two months during which the Veteran reported using alcohol-type over-the-counter medications. The examiner noted that there was a deeper cyst below the lower lip that was “almost gone.” The examiner noted the presence of “very minimal dot-like lesions” on the cheeks as well as some on the neck. The Veteran was afforded a VA examination in May 2015 wherein the examiner assessed the Veteran’s acne as superficial. The Veteran reported that the severity of the acne “waxes and wanes” and that he uses facial scrubs regularly and clindamycin lotion on occasion. The Veteran reported that it has been more than one year since he had taken oral medication for acne. There was no scarring or disfigurement. The Board finds that the April 2014 VA examination was at least as full and complete as the November 2006 examination upon which the rating was originally based. The VA examinations of January 2012, April 2014, and May 2015 reflect a consistent improvement for the Veteran’s acne disability since the original rating evaluation in 2006 and document reasonable certainty that the material improvement will be maintained under the ordinary conditions of life. At the time of the November 2006 examination, the Veteran’s acne was noted to be moderate to severe consistent with a 30 percent rating; however, subsequent examinations have shown that the acne is superficial. These findings are consistent with a noncompensable evaluation under Diagnostic Code 7828 and have demonstrated sustained improvement as the record reflects that he no longer has moderate to severe acne observed at the 2006 examination. That is, the record shows that he no longer has deep acne (deep inflamed nodules and pus filled cysts) affecting 40 percent or more of the face and neck as contemplated by the previously assigned 30 percent evaluation. The Board acknowledges the Veteran’s statements and testimony in the Board hearing in June 2018 that he experiences flare-ups about every one and half months during which time he uses different facial treatments for the acne. The VA examiners in April 2014 and May 2015 also noted that the Veteran’s acne condition has flare-ups, yet assessed the Veteran’s acne as superficial without scarring or disfigurement. Accordingly, the Board finds that the reductions in this case to a noncompensable level for the service-connected acne disability effective November 1, 2014, were proper. 38 C.F.R. § 3.105. REASONS FOR REMAND 1. Entitlement to service connection for hemorrhoids is remanded. The Veteran has submitted medical records documenting a current diagnosis of hemorrhoids, see July 2018 treatment records. The Veteran has submitted a letter dated July 2018 from his mother who stated that she observed the Veteran’s struggles with hemorrhoids directly after returning home from deployment. The Veteran contends that he has had hemorrhoids since active service. The Veteran has not been afforded a VA examination for this condition. The Board cannot make a fully-informed decision on the issue of service connection for hemorrhoids because no VA examiner has opined whether the Veteran’s current diagnosis developed during or is related to active service. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hemorrhoid condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including that the   Veteran developed the condition during active service. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Miller, Associate Counsel