Citation Nr: 18156502 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-19 748A DATE: December 11, 2018 ORDER The reduction of the evaluation for seed warts of the neck and chest, from 10 percent to noncompensable, effective December 15, 2015, was improper, and the 10 percent rating is restored effective December 15, 2015. FINDING OF FACT The evidence of record at the time of the January 2016 rating decision did not clearly reflect a material improvement in the Veteran’s service-connected seed warts of the neck and chest resulting in an improvement in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 10 percent disability rating for seed warts of the neck and chest, effective December 15, 2015, are met. 38 U.S.C. §§ 1155, 5112, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Code 7819. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to May 1972. Additional medical evidence, developed by VA, not relevant to the current appeal herein, was associated with the record in July 2018, subsequent to the most recent, June 2018, supplemental statement of the case issued for the appeal herein. Nonetheless, in October 2018, the Veteran’s representative waived review by the Agency of Original Jurisdiction (AOJ) of this additional evidence. 38 C.F.R. § 20.1304 (c). Thus, a remand for the additional evidence to be considered by the AOJ is not warranted. A February 2017 rating decision denied, in part, entitlement to service connection for gastroesophageal reflux disease and entitlement to individual unemployability. In April 2017, the Veteran submitted a timely notice of disagreement (NOD) with respect to these denials. The record does not reflect a statement of the case (SOC) has been issued with respect to these claims. Generally, in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to the AOJ to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). However, the Veterans Appeals Control and Locator System (VACOLS) indicates that the AOJ is already undertaking action on these issues as they remain in advance certification status. Thus, the Board does not have jurisdiction over these matters, and a remand is not warranted at this time. 1. Whether the reduction of the rating for seed warts of the neck and chest, from 10 percent disabling to noncompensable, effective December 15, 2015, was proper. When a reduction in the rating of a service-connected disability or employability status 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 at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e). Here, the reduction effectuated by the January 2016 rating decision did not result in a reduction or discontinuance of compensation payments being made. Specifically, prior to the reduction, the Veteran had a combined disability rating of 90 percent. Following the reduction, the Veteran still had a combined disability rating of 90 percent; and his compensation benefits were not reduced. Accordingly, the Board finds that compliance with the procedures outlined under 38 C.F.R. § 3.105 (e) was not required. See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007). That notwithstanding, a veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA 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 also Brown v. Brown, 5 Vet. App. 413, 420 (1993). Such review requires in any rating reduction case VA to determine (1) based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (citing Brown, 5 Vet. App. at 421). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the 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. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344 (a) and (b). VA benefits recipients are to be afforded greater protections in these cases. Where a veteran’s schedular rating has been both stable and continuous for five years or more, as is the case here, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344 (a). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. Ratings on account of a disease subject to temporary or episodic improvement, such as many skin diseases, 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. Id. Moreover, though material improvement in the mental or physical 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 life. Id.; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Prior to the AOJ’s reduction in the January 2016 rating decision, the 10 percent rating for seed warts of the neck and chest, had been in effect for more than five years, specifically from April 27, 2000 through December 14, 2015. The reduction in rating, therefore, could not be effectuated without meeting the requirements of 38 C.F.R. § 3.344 (a) and (b). The Veteran’s service-connected seed warts of the neck and chest are rated as benign skin neoplasms under 38 C.F.R. § 4.118, Diagnostic Code(DC) 7819. DC 7819 requires benign skin neoplasms to be rated as disfigurement of the head, face, or neck under DC 7800, as scars under DCs 7801, 7802, 7803, 7804, or 7805, or as impairment of function. An August 1972 rating decision granted service connection for seed warts of the neck and chest and assigned a noncompensable evaluation effective June 1, 1972. Thereafter, a February 2001 rating decision granted a 10 percent evaluation for seed warts of the neck and chest effective April 27, 2000 based primarily upon a July 2000 examination report. As discussed in the February 2001 rating decision, during the July 2000 examination, the Veteran reported this condition has been recurrent since his military service and symptoms included itching and irritation from clothing, and objectively, lesions were noted posteriorly on the neck in a midline cluster. The July 2000 examiner endorsed a diagnosis of recurrent warts requiring ongoing treatment by specialist. When the Veteran was reexamined in December 2015, however, the examiner found the seed warts of the Veteran’s neck and chest had resolved, which would equate to a noncompensable rating. The December 2015 examiner also described upon examination, that the Veteran had small, raised, brown-orange multiple, but discrete, scaly lesions over the cheeks, neck, right antihelix of the ears, abdomen and right forearm, and endorsed a diagnosis of seborrheic dermatitis. The December 2015 examiner found the Veteran’s diagnosis of seborrheic dermatitis was a new and separate diagnosis. Similarly, a June 2018 examiner found there was a history of viral warts, resolved, without evidence of current disease. The June 2018 examiner explained that, because viral warts was an infectious condition, once the infection cleared the condition was resolved. It was continued that, although viral warts could occur in the future, these viral warts would be from a new exposure and an infection unrelated to prior infections, and therefore unrelated to service. Upon examination, the June 2018 examiner found the Veteran had no complaints of viral warts, with no viral warts found. It was reported the Veteran reported being followed and treated by a dermatologist for skin tags that he first noted in service. The June 2018 examiner described that skin tags involved his neck, shoulders, chest and back and were removed by freezing as needed, specifically if they were in an area that bothered the Veteran, which was typically in locations where the weight and movement of clothes rubbed against the skin tags causing irritation. The June 2018 examiner found scattered skin tags 0.1 cm in size or less involving the shoulders and back. Upon reviewing the entire record, the Board finds that the reduction from 10 percent to noncompensable for seed warts of the chest and neck was improper. First, the December 2015 skin disability benefits questionnaire that was the basis of the reduction was not full and complete, when considering the entire record of earlier VA examinations and the medical-industrial history of the Veteran. Specifically, the December 2015 VA examiner did not indicate that the Veteran’s claims file was reviewed, which is of particular importance in this case as the examiner essentially endorsed a change in diagnosis, which was generally contrary to the July 2000 examiner’s findings that the Veteran’s warts onset in 1970 and continued intermittently thereafter. In addition, contrary to the finding of the December 2015 examiner that the Veteran’s seed warts had resolved, and the subsequent findings of the June 2018 examiner that any future viral warts would be from a new exposure and thus unrelated to prior infections, the July 2000 examiner endorsed a diagnosis of recurrent warts which reflects that the Veteran’s warts recurred periodically. Further, it is not clear whether there had been an actual change in the Veteran’s service-connected skin disability, and not merely a difference in use of descriptive terms. For example, as discussed below, the Veteran reported the same subjective complaints in July 2000 and June 2018, namely pruritus irritation from clothing. Therefore, the December 2015 skin disability benefits questionnaire cannot be used as a basis for a reduction. Second, and probatively, the evidence used as a basis for the reduction did not demonstrate that any improvement actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The December 2015 and June 2018 disability benefit questionnaires are reflective of material improvement in the Veteran’s seed warts of the neck and chest because, as discussed above, the examiners indicated that the Veteran’s seed warts had resolved. However, in order to warrant a reduction, the evidence must show that the Veteran’s service-connected disability materially improved overall, resulting in an improvement in his ability to function under the ordinary conditions of life and work. Specifically, as discussed, the July 2000 examiner documented symptoms of pruritus irritation from clothing, which were again documented in the June 2018 examination. Further, in his July 2016 substantive appeal, the Veteran reported, in part, that his skin condition was painful, irritated by heat and contact with clothing and was not a new condition, but had been occurring for many years. As these subjective complaints remained the same, the evidence is not sufficient to show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. In view of the foregoing, the Board finds that the evidence of record reflects that a reduction in the assigned 10 percent rating for seed warts of the neck and chest is not warranted, particularly as it had been in effect for more than 5 years. Therefore, the reduction of this rating was not proper, and the 10 percent rating is restored effective December 15, 2015. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel