Citation Nr: 18160768 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-32 129 DATE: December 27, 2018 ORDER The reduction in rating for asthma from 100 percent to 30 percent was inappropriate, and the prior 100 percent rating is reinstated for this disability, effective the date of the reduction. Special monthly compensation for housebound benefits based on schedular requirements are granted, effective the dates they were discontinued, subject to the provisions governing the award of monetary benefits. FINDINGS OF FACT 1. An April 2014 rating decision implemented the disability rating reduction from 100 percent to 30 percent for asthma, effective July 1, 2014. 2. At the time of the July 1, 2014 effective date of the reduction, the 100 percent rating for the Veteran’s asthma had been in effect for more than five years. 3. The AOJ rating decision, which reduced the disability for asthma from 100 percent to 30 percent effective July 1, 2014 did not reflect consideration of the provisions of 38 C.F.R. § 3.344 and are void ab initio. 4. With the restoration of the 100 percent disability rating for asthma, the probative evidence of record demonstrates that the Veteran has a single service-connected disability rated as 100 percent and additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. The reduction of the assigned 100 percent disability rating for asthma effective July 1, 2014, was improper and restoration of the 100 percent disability rating for such disability is warranted effective from July 1, 2014, the date of reduction. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.343, 3.344, 4.85, Diagnostic Code 6602. 2. The criteria for establishing entitlement to special monthly compensation for housebound benefits based on schedular requirements have been met since the dates they were discontinued. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1994 to June 1997. Reductions The Veteran contests the reduction from 100 percent to 30 percent for asthma. When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the Agency of Original Jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the Board observes that the rating reduction did result in a reduction of VA compensation being paid to the Veteran as the overall, combined disability rating was reduced from 100 percent to 70 percent. When a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation 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 Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. Asthma In the present case, as a preliminary matter, the Board finds that the procedural requirements of § 3.105 were satisfied in this rating reduction. Notice was sent in a December 2013 rating decision and letter, both of which informed the Veteran of the proposed rating reductions. The December 2013 letter further explained the effected the proposed rating reduction would have on the Veterans’ combined disability evaluation and informed the Veteran of his options to submit additional evidence and request a personal hearing. By way of an April 2014 rating decision, the AOJ reduced the Veteran’s disability rating, effective July 1, 2014. The AOJ satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date. See 38 C.F.R. § 3.105. Accordingly, the remaining question is whether the reduction in the disability rating is warranted based on the medical and lay evidence of record. 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 VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). 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, 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). 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. In the present case, the Veteran’s 100 percent rating for asthma was awarded effective September 2001, and was reduced effective July 1, 2014, more than five years later. Therefore, only evidence of sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examinations, can justify a reduction. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In fact, the Court has consistently held that when VA reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). By way of history, in May 2004, the Veteran was assigned a 100 percent disability rating for asthma, effective September 26, 2001. That disability rating was premised on a May 2004 VA examination, at which time the Veteran was noted to have severe asthma and labeled as prednisone dependent, as he took one prednisone tablet daily. Upon pulmonary function testing, the Veteran’s pre-bronchodilator FVC was 73 percent predicted; pre-bronchodilator FEV1 was 64 percent predicted. Post-bronchodilator FVC was 78 percent predicted, while post-bronchodilator was 71 percent predicted. It is clear that the 100 percent disability rating was assigned based on a finding of daily use of systemic high dose corticosteroids or immunosuppressive medications. The Veteran’s respiratory disability was reexamined in July 2007. At that time, the Veteran stated that his symptoms were more nocturnal and kept him awake at night. He took a nebulizer once or twice at night and used an inhaler at least once or twice during the day. He occasionally used oral prednisone when he felt “really sick.” Upon pulmonary function testing, the Veteran’s pre-bronchodilator FVC was 73 percent predicted; pre-bronchodilator FEV1 was 58 percent predicted. Post-bronchodilator FVC was 81 percent predicted, while post-bronchodilator was 70 percent predicted. Based on this examination, the RO continued the Veteran’s 100 percent disability rating for asthma. See Rating Decision dated July 2007. The Veteran filed for an increased rating in April 2009 and was afforded a VA examination in May 2009. At the examination, the Veteran reported constant breathing difficulty and shortness of breath. He described having daily acute attacks, for which he visited his doctor several times a year. He also stated that he had occasional dyspnea on rest and frequent dyspnea on mild exertion; his asthma prevented him from doing any moderate or severe exertion. There was no history of respiratory failure, however, he did have a history of anorexia. His asthma also prevented him from sleeping at night, as his symptoms worsened at night time. His treatment for his asthma included oral inhalers and daily prednisone tablets. As for the oral medication, he alternated his dosage, taking two doses on even numbered days and one dose on odd number days. Upon examination, the examiner noted that the Veteran exhibited wheezing throughout all lung fields; no normal breath sounds were heard. Pulmonary function tests revealed pre-bronchodilator FVC at 70 percent predicted and pre-bronchodilator FEV1 was 53 percent predicted. Post-bronchodilator FVC was 75 percent predicted, while post-bronchodilator was 59 percent predicted. The Veteran was afforded another VA examination in September 2009. The Veteran indicated that his condition was either unimproved or worse. He stated that he used parenteral steroids, via Serevent inhaler, at least once a day. He also used antibiotics, which required continuous usage, along with his alternate doses of prednisone. He reported having at least three acute asthma attacks per week, which resulted in several clinical visits per year. He also had constant or near constant cough and wheezing, with occasional dyspnea at rest and frequent dyspnea upon any exertion. He described a history of anorexia along with frequent chest pain at rest and on exertion. Also, his asthma symptoms worsened during certain seasons, which caused him four days of incapacitation in the past 12 months. Upon review of the record, the examiner found that while the Veteran did take prednisone daily, such medication is added to a treatment regimen because of the concomitant airway inflammation that occurs with airway obstruction in asthma. The examiner also indicated that the Veteran’s severe allergies often precipitated his asthma attacks. Ultimately, the examiner found that if the Veteran was able to obtain greater control over his environmental allergies, then his asthma onset would decline. Based on these examinations, the RO continued the Veteran’s 100 percent evaluation based on the required daily use of a systemic high dose corticosteroid or immuno-suppressive medication. See Rating Decision dated March 2010. The Veteran was again afforded a VA examination in April 2012. At that time, the Veteran reported continued use of prednisone on a daily basis, along with his albuterol treatment and Asmanex inhaler. He stated that he was a night time asthmatic, as he had significant difficulty breathing at night. However, the examiner indicated that the Veteran has not received any medical treatment or check-ups since June 2010, and thus he had no active medications on his medical profile. Pulmonary function tests revealed pre-bronchodilator FVC at 68 percent predicted and pre-bronchodilator FEV1 was 52 percent predicted. Post-bronchodilator FVC was 74 percent predicted, while post-bronchodilator was 61 percent predicted. The examiner noted that the FEV-1 percent predicted test result most accurately reflected the Veteran’s level of disability. In addition, the examiner noted that the Veteran’s test results suggested poor patient effort. At the June 2013 VA examination, the Veteran reported that he no longer used oral steroids for treatment; rather, he changed to inhaler therapy only. He used Symbicort along with albuterol and an albuterol nebulizer. He used his rescue inhaler twice a day. The Veteran denied having any asthma attacks with episodes of respiratory failure in the past 12 months, nor did he have any required physician visits for asthma-related exacerbations. Based on past pulmonary function tests, the examiner found that the Veteran’s FEV-1/FVC result of 68 percent most accurately reflected the Veteran’s level of disability. As for functional impact, the examiner found that the Veteran’s severe uncontrolled asthma needed frequent rescue inhalers with exertion. Based on these examinations, the RO reduced the Veteran’s disability rating from 100 percent to 30 percent under 38 C.F.R. § 497, Diagnostic Code 6602. The RO reasoned that the Veteran’s pulmonary test results, specifically his FVC and FEV-1 results more nearly approximated the severity contemplated by the 30 percent rating. The RO also noted that the Veteran no longer used systemic corticosteroids; rather, his asthma treatment only consisted of daily inhalational therapy. See Rating Decisions dated December 2013 and April 2014. After thorough review of the evidence, the Board finds that the AOJ failed to properly make findings in this case as to both prongs of the Faust test for rating reduction cases. The adjudicatory documents do not demonstrate that the AOJ made a finding with respect to whether the improvement noted reflected “an improvement in the Veteran’s ability to function under the ordinary conditions of life and work” to support the rating reduction. Without such explicit findings, the Board cannot properly analyze the ratings-reduction issue currently on appeal. The Board additionally notes that, from a factual point of view, the AOJ’s rating reduction is also not supportable. The Board can find no evidence suggesting why the Veteran’s asthma disability would improve from a medical point of view. Since the effective date of service connection, the Veteran has been afforded several VA examinations, to include pulmonary functioning tests. The results of the Veteran’s pulmonary function tests have remained relatively consistent, which suggest that the severity of the Veteran’s disability has not improved. In fact, earlier tests from the time the Veteran was rated 100 percent, reflect higher FVC and FEV-1 percentages than more recent test results. In addition, the most recent VA examiner, in June 2013, indicated that the Veteran had “severe uncontrolled asthma” that required frequent inhaler treatment upon any exertion. The inhaler Symbicort contains budesonide which is a corticosteroid hormone. https://www.mysymbicort.com/; https://www.mayoclinic.org/drugs-supplements/budesonide-inhalation-route/description/drg-20071233. Such a description is reflective of the severity of the Veteran’s asthma since the effective date of the 100 percent disability rating. It also demonstrates that the severity of the asthma has not resulted in an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Accordingly, the action to reduce the rating is void, and the 100 percent evaluation for asthma under Diagnostic Code 6602 is restored effective July 1, 2014 as though the reduction had not occurred. See Faust, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Special Monthly Compensation Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or, (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran’s special monthly compensation for housebound benefits based on schedular requirements was discontinued in July 2014 because the Veteran did not meet the criteria for such benefits once the disability rating for his asthma was reduced from 100 percent to 30 percent. As the disability rating for his asthma has been full restored to 100 percent, effective the date of the reduction, the Board observes that the Veteran again meets the criteria for special monthly compensation for housebound benefits based on schedular requirements as of the date it was discontinued. Specifically, the probative evidence of record demonstrates that the Veteran has a single service-connected disability rated at 100 percent, namely asthma, and additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, namely his service-connected posttraumatic stress disorder (PTSD), rated as 50 percent disabling, and his service-connected allergic, rated as 10 percent disabling. Accordingly, the Board finds that the criteria for establishing entitlement to special monthly compensation for housebound benefits based on schedular requirements have been met since the date it was discontinued. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel