Citation Nr: 18157970 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 17-00 103 DATE: December 13, 2018 ORDER The claim of entitlement to the restoration of a 10 percent evaluation for limitation of motion of the right thumb is granted. FINDING OF FACT An improvement in the Veteran’s right thumb disability was not adequately demonstrated by the evidence of record at the time of the June 2015 rating decision reducing the rating for the disability from 10 percent to 0 percent (noncompensable). CONCLUSION OF LAW The 10 percent rating for limitation of motion of the right thumb was not properly reduced and is restored. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.344, 4.114, Diagnostic Code 5228 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from November 1994 to November 1998. 1. The claim of entitlement to the restoration of a 10 percent evaluation for limitation of motion of the right thumb The Veteran contends that the reduction of his rating from 10 to a noncompensable rating for his service-connected right thumb disability was improper; and, that the 10 percent rating should be restored. Having reviewed the evidence of record, the Board finds that restoration of the 10 percent rating for the Veteran’s right thumb disability is warranted. The June 2015 rating decision effectuating the reduction noted that such reduction was prompted by the Veteran’s reevaluation at the May 2015 VA examination. For rating reductions in effect less than 5 years, it must be determined that an improvement in a disability has actually occurred and that such 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, 420-421 (1993). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). Therefore, the Board will focus only upon the propriety of the reduction, specifically, whether the evidence of record warranted a reduction in the assigned rating. In February 2014, the Veteran underwent a VA examination to assess the impairment of his right-hand strain incurred during service, on which the RO initially granted service connection. The Veteran reported flare ups of pain and stiffness with recurrent lockups and a reduced grip. The gap between his thumb pad and fingers was less than one inch with objective evidence of pain beginning at the gap. The examiner reported functional loss due to less movement than normal, weakened movement, and pain on movement. Range of motion during flare ups and after repetitive use was estimated to be approximately 5 degrees. In the May 2014 VA examination, the Veteran’s right thumb range of motion did not significantly change. He reported difficulty writing, and experienced weakness in his hand that interfered with his grip. The Veteran also reported pain and cramping throughout his hand and poor dexterity. During flare ups, he experienced difficulty holding objects, particularly small items and writing utensils. Writing became painful, and caused discomfort in his shoulder and neck over time. The right thumb maintained a gap of less than an inch between the thumb pad and fingers. The examiner noted that there was no objective evidence of painful motion, and no additional limitation of motion after repetitive use testing. While initially starting that there was no functional loss or impairment, the examiner later noted that contributing factors of pain, weakness, fatigability and/or incoordination caused functional impairment with flare ups and after repetitive use. There was no additional loss of range of motion in these instances. As noted above, in cases of reduction, the burden of proof lies with VA to show that the Veteran’s disability has undergone an observable improvement. To be precise, the burden is on the Board to establish by a preponderance of evidence that the rating reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993). On longitudinal review of the record, and with the benefit of the doubt being afforded to the Veteran as is required by the law, the Board cannot find that the evidence demonstrates sustained material improvement in the service-connected right thumb disability. 38 C.F.R. § 4.3, 4.7. The Veteran continued to present with similar, if not slightly worse subjective symptoms that were apparently not considered by the second VA examiner. In addition, while the examiner did not check the box indicating functional impairment, he did discuss heightened functional impairment during flare ups and after repetitive use in his notes. Furthermore, the Veteran continued to report symptoms of pain and weakness with motion and use of his right thumb. Despite the noncompensable evaluation that would have been afforded for a gap between the thumb pad and fingers of less than an inch, the Veteran’s painful motion and functional difficulty warrant an increased evaluation. See Deluca v. Brown; 8 Vet. App. 202 (1995). Accordingly, the Board finds that the evidence of record fails to indicate that the Veteran’s disability actually improved. Therefore, the Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his right thumb disability was not proper. Accordingly, restoration of the 10 percent rating for limitation of motion of the right thumb is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel