Citation Nr: 18158008 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-23 076 DATE: December 14, 2018 ORDER The reduction of rating for bilateral keratoconus from 30 percent to non-compensable (zero percent), effective March 1, 2015, was improper, and a 30 percent rating is restored, effective March 1, 2015. FINDING OF FACT From March 1, 2015, the Veteran’s eye disability is not shown by the evidence to have improved under the ordinary conditions of work and life. CONCLUSION OF LAW The reduction of the Veteran’s disability rating for his bilateral keratoconus from 30 percent to non-compensable (zero percent) was not proper and the 30 percent rating is restored, effective March 1, 2015. 38 U.S.C. §§ 5107, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.79, 4.84a, Diagnostic Code 6035 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2000 to May 2009. Entitlement to reinstatement of the 30 percent disability rating for bilateral keratoconus. The Veteran asserts that the AOJ’s reduction in the rating for bilateral keratoconus from 30 percent to noncompensable, effective March 1, 2015, was improper and that the 30 percent rating should be reinstated. In a rating reduction, not only must it be determined that an improvement in a disability has occurred, but also that the improvement reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Specific requirements must be met for VA to reduce certain ratings assigned for service-connected disabilities. 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), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later. 38 C.F.R. § 3.344 (b). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. The Court has held that there are several general VA regulations that apply to all rating reductions, regardless of whether the rating has been in effect for five years or more. See Brown, supra. Specifically, the evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). The determination in a reduction in rating case must include the proper application as to the standard of proof. To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required. See Brown v. Brown, 4 Vet. App. at 420; Peyton v. Derwinski, 1 Vet. App. 292, 286. In determining whether the reduction was proper in this case, the Board must focus upon the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. Such after-the-fact evidence may not be used to justify an improper reduction. Here, the Agency of Original Jurisdiction (AOJ), in an October 2009 rating decision, awarded a 30 percent rating for the Veteran’s eye disability, effective May 28, 2009, because the disability required contact lenses. In August 2011, the Veteran filed a claim for an increased rating. During the pendency of that claim, he was provided with a VA eye examination in November 2012. In a December 2012 rating decision, the AOJ continued the 30 percent disability rating but informed the Veteran that because there was some indication of improvement in the condition, the evaluation was not considered permanent and was subject to future review examination. Following an April 2014 review examination, the AOJ proposed a rating reduction in May 2014 and instituted the reduction in a December 2014 rating decision. The present appeal arises from the Veteran’s disagreement with the December 2014 decision. As an initial matter, the Board observes that in the October 2009 rating decision which granted service connection, the AOJ applied a former version of the diagnostic code pertinent to the eye disability, which was changed in December 2008. The prior version of the code provided for a minimum 30 percent disability rating when contact lenses were required. See 38 C.F.R. § 4.84a, Diagnostic Code 6035 (2008). The updated rating code removed section 4.84a and provided for ratings, in pertinent part, based upon visual acuity. The December 2014 rating decision did not base the reduction on clear and unmistakable error in applying the former rating code when assigning the 30 percent disability rating in October 2009 or continuing the rating in November 2012, but rather explained that the reduction was based on alleged improvement in the disability. See December 2014 rating decision. Thus, the Board will address whether the rating was proper based upon improvement in the Veteran’s disability. After a review of the record, the Board finds that the present reduction was improper as the preponderance of the evidence does not show improvement in the Veteran’s eye disability. In so finding, the Board notes that the Veteran’s visual acuity did not improve from the September 2009 VA examination to the April 2014 VA examination. Moreover, the Veteran’s reported symptoms and complaints regarding the effects of the eye disability on his daily life, remained the same from the time service connection was granted to the present. VA examination in September 2009 noted that the Veteran’s disability required contact lenses. Corrected and uncorrected near visual acuity was 20/20 in both eyes. Uncorrected distance visual acuity was 20/40+1 on the right and 20/50-2 on the left. Corrected distance visual acuity was 20/30+1 on the right and 20/25-2 on the left. Regarding functional impairment, the Veteran reported that his primary difficulty was with driving at night as there was a lot of glare and distortion from lights. He also complained of contact lenses falling out a lot, especially when looking over to the right or left sharply. He also reported constant incapacitation at night. In November 2012, VA examination report revealed corrected and uncorrected near visual acuity was 20/40 or better in both eyes. Uncorrected distance visual acuity was 20/70 in both eyes. Corrected distance visual acuity was 20/40 or better on the right and 20/50 on the left. Regarding functional impairment, the examiner noted that the decrease in visual acuity would alter all daily activities and the most detrimental effect would be the night activities due to blurry vision halos and flares of lights. In April 2014, the Veteran was provided with another VA examination. The VA-contracted examiner noted that the course of the Veteran had progressive worsening of the eye disease but stable vision with currently medically necessary rigid contact lenses. At that time, uncorrected near visual acuity was 20/70 on the right and 20/200 on the left. Uncorrected distance acuity was 20/70 on the right and 20/200 on the left. Corrected near visual acuity was 20/40 or better in both eyes. Corrected distance visual acuity was also 20/40 or better in both eyes. Regarding functional impairment, the examiner did not address any lay statements regarding functional impairment but rather noted that the Veteran’s eye disability did not affect his ability to work. The Veteran was provided a VA-contracted examination in November 2014. At that time, corrected and uncorrected near visual acuity was 20/40 or better in both eyes. Uncorrected distance visual acuity was 20/40 or better on the right and 20/200 on the left. Corrected distance visual acuity was 20/40 or better in both eyes. The November 2014 VA examiner did not address any lay statements regarding functional impairment but rather noted that the Veteran’s eye disability did not affect his ability to work. In the December 2014 rating decision, the 30 percent rating was reduced to a non-compensable rating, effective March 1, 2015. The AOJ explained that the rating was reduced because the VA examination reports showed improvement in the Veteran’s eye disability. At the time of the rating reduction in December 2014, the Veteran’s eye disability had been rated 30 percent disabling for more than five years. The Board acknowledges that when the Veteran’s 30 percent disability rating was continued in the December 2012 rating decision, the AOJ informed the Veteran that the evaluation was not permanent and that it was subject to a review examination. The Board also acknowledges that the May 2014 proposed reduction was issued days prior to the five-year anniversary of the effective date of service connection. Regardless of whether the Veteran’s disability was “permanent” or was “likely to improve”, as discussed above, reductions in ratings are warranted when there is actual improvement in the disability. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). Further, any VA examination reports upon which a reduction is based, must be adequate. See Schafrath, 1 Vet. App. at 595 In this case, the Board finds that improvement has not been shown. In September 2009 and November 2012, the Veteran had 20/40 or better uncorrected near visual acuity, but in April 2014, uncorrected near visual acuity was worse as demonstrated by findings of 20/70 on the right and 20/200 on the left. The Board acknowledges that corrected near visual acuity was 20/40 or better in both eyes at all the examinations. Uncorrected distance visual acuity similarly worsened in April 2014 compared to the results in September 2009 and November 2012, but corrected distance visual acuity remained 20/40 or better in both eyes during the September 2009, April 2014, and November 2014 VA examinations. The November 2012 VA examination report indicated a worse corrected distance visual acuity of 20/40 or better on the right and 20/50 on the left. Further, the Board finds the April 2014 and November 2014 VA examination reports to be inadequate as neither of the 2014 VA examiners addressed the Veteran’s prior reports regarding nighttime glare and driving. There is no indication that the Veteran’s complaints improved. To the contrary, the Veteran offered sworn testimony that such complaints remained his primary functional impairment. See April 2018 Hearing Transcript page 4. During the Veteran’s hearing before the Board, he reported that he had essentially stopped driving at night. He also reported that it was hard to see sometimes while working at a computer. He also reported that when driving, he has had to pull over and wait for someone to pick him up because his contact lenses fogged up or fell out of his eye. He reported his belief that his contact lenses are scratching his cornea and making it worse. Transcript page 7. He reported that without contacts, his vision was approximately 20/200 and that he felt like he could not see at all. His wife also offered sworn testimony that the Veteran struggled to see his phone, squinted to watch television, constantly complained of irritation in his eyes, that his eyes were constantly red and burning. She also reported that one of the Veteran’s physicians instructed him to take his contacts out for a few hours during the day but that the Veteran could not do that as he had to complete his work on a computer and meet deadlines. She also reported that when his eyes were irritated, he could not put the contacts back in his eyes because they burned his eyes. VA treatment records are consistent with the examination reports regarding visual acuity, as well as the lay reports regarding the Veteran’s symptoms. Taking together all the evidence, the Board finds that the Veteran’s eye disability did not improve at any time pertinent to the appeal. Moreover, the Board finds that the April 2014 and November 2014 VA examination reports were inadequate reports upon which to base a rating decision as neither examiner considered the Veteran’s reported functional impairment. As the reduction was based upon inadequate VA examinations, the Board finds that it must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. For these reasons, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that improvement of the Veteran’s eye disability was not shown by the preponderance of the evidence. Accordingly, restoration of the 30 percent rating, effective March 1, 2015, is warranted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel