Citation Nr: 18158841 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-11 240 DATE: December 18, 2018 ORDER The reduction for the rating for a left shoulder disability from 30 percent to 10 percent for left shoulder disability was proper. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for chronic bronchitis is remanded. Entitlement to service connection for dermatitis is remanded. FINDING OF FACT In a September 2013 rating decision, the RO reduced the disability evaluation assigned to the Veteran’s service connected left shoulder disability from 30 percent disabling to 10 percent, effective December 1, 2013, based on a VA examination disclosing improvement in ability to function under ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the disability evaluation for a left shoulder disability, from 30 percent to 10 percent, effective December 1, 2013, was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.159, 3.344, 4.71a, Diagnostic Code 5019-5201 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1992 to July 1992 and October 2001 to September 2002. Additionally, the Veteran served in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from the September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). The Board notes that there are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e) (2017). A period of 60 days is allowed for response. Id. The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105 (i) (2016). Furthermore, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e). In this case, reduction notification procedures were required as the September 2013 rating decision that implemented the rating reductions changed the Veteran’s overall disability rating, which was reduced from 80 percent to 70 percent. The special procedural requirements outlined in 38 C.F.R. § 3.105 (e) and (i) were therefore applicable in this case. The record shows that the Veteran was notified of the proposed rating reductions in a June 2013 rating decision and notice. The June 2013 rating decision set forth all material facts and reasons for the proposed rating reductions and properly notified the Veteran of the 60 day period to provide additional evidence. 38 C.F.R. § 3.105(e). In addition, the June 2013 notice properly notified the Veteran of the 60 day period to provide evidence, how to obtain a personal hearing in accordance with 38 C.F.R. § 3.105 (i), and what evidence she could submit. Thus, the Board finds that VA has satisfied the specific procedural requirements applicable to the Veteran’s rating reductions. 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 (West 2014); Greyzck v. West, 12 Vet. App. 288, 292 (1999) and cases cited therein. As noted above, the Veteran’s overall disability rating as a result of the reduction changed and the due process protections of 38 C.F.R. § 3.105 (e) and (i) have been satisfied. Therefore, the remaining question is the propriety of the reductions. The Veteran’s left shoulder disability is evaluated as 10 percent disabling under diagnostic code 5019-5201. As an initial matter, the Board notes that diagnostic codes 5200-5203 differentiate between ‘major’ and ‘minor’ disabilities of the arm. This differentiation connotes whether the disability is the Veteran’s dominant or non-dominant hand/arm. Here, the Veteran’s left shoulder is at issue and his left hand is dominant. Thereby, the ‘major’ ratings apply. Under diagnostic code 5201, a 40 percent rating is warranted for limitation of motion to 25 degrees from the side; a 30 percent rating is warranted for limitation of motion of the arm midway between the side and shoulder level; and, a 20 percent rating is warranted for limitation of motion at shoulder level. 38 C.F.R. § 4.71a. Additionally, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45 (2016). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40 (2016); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The criteria governing certain rating reductions for certain service connected disabilities are found under 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. In the present case, the 30 percent rating for a left shoulder disability had been in effect for less than five years at the time the reductions took place. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply. Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c) (2017). Nevertheless, in Brown v. Brown, 5 Vet. App. 413 (1993), the Court stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421, citing 38 C.F.R. § 4.1, 4.2, 4.10, 4.13. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that it is the reasonability of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. A claim as to whether a rating reduction was proper must be resolved in the veteran’s favor unless the Board concludes that a preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In September 2012, the Veteran filed a claim for an increase in his left shoulder disability rating. Subsequently, in March 2013, the Veteran underwent a VA shoulder examination. At the examination, the examiner stated that the Veteran is diagnosed with bursitis and a rotator cuff tear of the left shoulder. Additionally, the examiner noted that the Veteran’s left shoulder flexion was limited to 130 degrees with objective evidence of painful motion beginning at 100 degrees and abduction limited to 130 degrees with objective evidence of painful motion beginning at 120 degrees. The Veteran was noted to be able to perform repetitive use testing with three repetitions. As a result of the March 2013 examination results, the Regional Office reduced the Veteran’s left shoulder disability rating from 30 percent to 10 percent as the evidence only showed painful motion without limited motion compensable to the next higher evaluation. In doing so, the RO considered functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995). Specifically, the RO found that a higher evaluation of 20 percent is not warranted for limitation of motion of the shoulder as the evidence did not show limitation of motion at the shoulder level. Additionally, the Board acknowledges the Veteran’s submission of a letter from his private physician. However, the letter did not provide the necessary evidence to demonstrate a higher rating than 10 percent. Therefore, the Board finds that the reduction of the Veteran’s left shoulder disability from 30 percent to 10 percent is proper. The Board finds that the results of the examination showed improvement reflects improvement in ability to function under ordinary conditions of life and work in light of the fact that the Veteran was able to perform repetitive use testing. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to service connection for sinusitis, bronchitis, and dermatitis are remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that his sinusitis, bronchitis, and dermatitis are related to his military service. Specifically, the Veteran stated that these conditions began in service and were diagnosed in the spring of 1992. The Board notes that the Veteran’s service treatment records note a cough, congestion, and mucous in March and June 1992. Additionally, a rash was noted while the Veteran was in service. However, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for sinusitis, bronchitits, and dermatitis because no VA examiner has opined whether these conditions are related ot the Veteran’s military service. Therefore, a remand is warranted for the Veteran to undergo VA examinations. Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran’s claims file. 2. Schedule the Veteran for an examination to provide an opinion as to the nature and etiology of the Veteran’s sinusitis, bronchitis, and dermatitis that have been present during the period on appeal. After reviewing the record, to include the Veteran’s lay testimony, the examiner is asked to address the following: a) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran’s sinusitis, was caused by service, or is otherwise related to the Veteran’s military service? b) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran’s bronchitis, was caused by service, or is otherwise related to the Veteran’s military service? c) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran’s dermatitis, was caused by service, or is otherwise related to the Veteran’s military service? The examiner is directed to review the Veteran’s service treatment records noting skin and sinus type symptoms. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel