Citation Nr: 18159765 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-21 890 DATE: December 20, 2018 ORDER The reduction of the disability rating from 60 to 30 percent for chronic obstructive pulmonary disease (COPD) was improper, restoration of the initial 60 percent rating is warranted. FINDINGS OF FACT 1. An October 2013 rating decision proposed a reduction of the disability rating assigned for COPD from 60 percent to 30 percent. 2. A January 2015 rating decision effectuated the proposed reduction of the disability rating for COPD from 60 percent to 30 percent, effective May 1, 2015. 3. The 60 percent disability rating for COPD had been in effect for more than five years. 4. With respect to the assigned disability rating reduction from 60 to 30 percent on May 1, 2015, there was no VA examination or other medical evidence showing any improvement in the Veteran’s disability around the time of the reduction. CONCLUSION OF LAW The COPD rating reduction from 60 percent to 30 percent effective May 1, 2015, was improper, and restoration of the prior rating is warranted. See 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 4.7, 4.10, 4.97, DC 6603-6604. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Army March 2000 to August 2001. The Veteran testified at a Travel Board hearing in November 2018 before the undersigned Veterans Law Judge. 1. Whether the reduction of the disability rating from 60 to 30 percent for chronic obstructive pulmonary disease (COPD) was improper. The Veteran generally contends that the COPD rating reduction was improper. Based on the evidence below, the Board agrees. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155, Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Here, the Veteran’s 60 percent rating was in effect from August 2001 to May 2015 – nearly 14 years prior to the rating reduction. Thus, the stabilization of disability ratings provisions from 38 C.F.R. § 3.344 applies. A rating reduction must (1) be based on a review of the entire history of the Veteran’s disability; (2) be based on whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations; and (3) must discuss whether that improvement actually reflects an improvement of the Veteran’s ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). The fact-finder must issue a rating decision proposing to reduce the rating and notice of the 60-day period for the submission of evidence and of the right to request a predetermination hearing within 30 days. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO’s reduction was warranted. See Brown v. Brown, 5 Vet. App. 413 (1993), Kitchens, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In an October 2013 rating decision, the RO proposed to reduce the Veteran’s rating for COPD from 60 percent to 30 percent based on apparent improvement to his condition; it was also noted he failed to attend a July 2013 VA examination. The Veteran disagreed with the reduction and requested his VAMC treatment records be sought. In the January 2015 rating decision, the RO effectuated the reduction for COPD to 30 percent, effective May 1, 2015. The Veteran was notified of both decisions and initiated an appeal as to the reduction in May 2015. During the November 2018 hearing, the Veteran testified that he never received an exam prior to the effectuated reduction for his COPD. He also noted that he requested the July 2015 VA examination be rescheduled, but the RO did not respond. A memo in the file indicated the Veteran failed to report to the exam; however, a letter from the Veteran showed he attempted to reschedule. The Veteran also testified that doctors treated his condition before testing his lungs and continued this practice until he got a higher level of pulmonary function. He continued using medication daily and saw no improvement in life or work. The reduction was improper because the RO did not show an actual improvement in the Veteran’s condition and there is no evidence pointing to that fact. Specifically, the Veteran did not have an examination prior to the reduction and medical records available at the time of the proposed reduction were not current. The medical evidence available at the time of the rating reduction shows the Veteran’s condition was stable and had not changed since approximately 2009. However, the RO indicated the reduction was based on the Veteran’s failure to appear at a VA examination and lack of evidence showing continuation of symptoms. A note in the claims file shows the 2013 examination was canceled because the Veteran lived outside of the QTC medical service’s jurisdiction. The Veteran submitted information to the RO indicating that he underwent pulmonary functioning testing (PFTs) in October 2013 at a VA facility; however, in the January 2015 rating decision the RO indicated that a search of the records did not show PFTs. The Board notes that in the February 2017 Statement of the Case, the RO reviewed the October 2013 VA records, and indicated that the findings were not adequate for rating purposes. Despite this, the evidence available at the time of the rating reduction did not support the reduction. Rather, the evidence shows the Veteran’s condition was stable, the Veteran requested to reschedule both the 2013 and 2015 exams, and attempted to submit further medical evidence in support of his claim. The RO’s conclusion that the Veteran’s condition improved and would maintain that improvement is inconsistent with the evidence of record because there was no medical evidence showing any change at the time of the reduction. The burden is on VA to show improvement in the condition; it is not on the Veteran to show continued symptoms. As noted above, the Veteran’s 60 percent rating had been in effect for nearly 14 years; therefore, per provisions of 38 C.F.R. § 3.344, rating stabilization is necessary in this case. Therefore, the reduction was improper. In light of the foregoing, the Board must find that the rating decision that reduced the rating for the Veteran’s COPD was not in compliance with governing regulatory provisions, and that restoration of a 60 percent rating from the effective date of the reduction is warranted. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel