Citation Nr: 18160933 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-60 166 DATE: December 28, 2018 ORDER The reduction from a 60 to 10 percent rating effective December 1, 2015 for furunculosis was proper. The reduction from a 70 to 50 percent rating effective December 1, 2015 for posttraumatic stress disorder (PTSD) was not proper; the 70 percent rating is restored. FINDINGS OF FACT 1. At the time of the September 2015 reduction in evaluation of the Veteran’s furunculosis of the scalp from 60 percent disabling to 10 percent, there was a showing of improvement in disability to include the Veteran’s discontinued use of prescription medication or any debilitating or non-debilitating episodes during the past 12-month period. 2. The September 2015 rating decision reducing the Veteran’s compensation for PTSD to 50 percent effective December 1, 2015, was not based on an actual improvement in the Veteran’s condition. CONCLUSIONS OF LAW 1. The reduction of the rating for furunculosis from 60 percent to 10 percent, effective December 1, 2015, was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Codes (DCs) 7800, 7806 (2018). 2. The reduction of the rating for PTSD from 70 percent to 50 percent, effective December 1, 2015, was not proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.130, DC 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to February 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). Reductions The Veteran seeks restoration of the 60 percent disability rating for his service-connected furunculosis. He further seeks restoration of the 70 percent disability rating for his service-connected PTSD. He contends that the reductions of those evaluations were improper. 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). 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). 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 2015 rating decision that implemented the rating reductions changed the Veteran’s overall disability rating from 100 percent to 60 percent. The special procedural requirements outlined in 38 C.F.R. § 3.105(e) and (i) were therefore applicable in this case. The record includes a June 2015 rating decision that proposed reducing the rating of the Veteran’s furunculosis from 60 percent disabling to 10 percent. The decision further proposed reducing the rating of the Veteran’s PTSD from 70 percent disabling to 50 percent. The Veteran was notified of the proposed rating reductions in June 2015. The June 2015 notice enclosed the June 2015 rating decision that set forth all material facts and reasons for the proposed reductions. Additionally, the June 2015 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 he could submit. Thus, the Board finds that VA has satisfied the specific procedural requirements applicable to the Veteran’s rating reductions. Therefore, the remaining question is the propriety of those reductions. 1. Furunculosis 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; Greyzck v. West, 12 Vet. App. 288, 292 (1999). 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 60 percent evaluation for the service-connected furunculosis had been in effect for less than three years at the time the reduction 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). Nevertheless, in Brown, 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. Initially, the Board notes that there is no diagnostic code that specifically addresses recurrent furunculosis; therefore, the Veteran’s furunculosis has been evaluated to an analogous skin disability. The Veteran’s furunculosis was initially rated pursuant to 38 C.F.R. § 4.118, DC 7800, and assigned a 50 percent evaluation. DC 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck be rated 10 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118. The rating criteria contemplate 8 characteristics of disfigurement include the following: (1) scar 5 or more inches (13 or more cm) in length; (2) scar at least one-quarter inch (0.6 cm) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-pigmented or hyper-pigmented in an area exceeding six square inches (39 sq. cm); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and, (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id., Note 1. The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order ot assign that evaluation. Id., Note 5. The Veteran filed an increased rating claim for his service-connected skin condition in July 2009. Thereafter, the Veteran underwent a VA examination in October 2012. The examiner noted a diagnosis for furunculosis which was found to cause scarring. The examiner also noted that the skin condition was treated with systemic corticosteroid or other immunosuppressive medications constantly or near-constantly, and antibiotics and topical medications for less than 6 weeks in the past 12-month period. The skin condition was noted to not result in any debilitating or non-debilitating episodes in the past 12-months. The condition was not found to cause urticaria, primary cutaneous vasculitis, erythema multiforme or toxic epidermal necrolysis. The examiner noted that the condition covered between 5 to 20 percent of the total body area and 20 to 40 percent of the exposed area. The Veteran also underwent a January 2013 VA scar examination which noted a diagnosis for scars on the Veteran’s head due to furunculosis. The examiner noted numerous pitting scars that were not found painful or unstable. The examiner further noted that the scars were disfiguring with each measuring 0.2 cm x 0.2 cm. There was no evidence of elevation, depression or adherence to the underlying tissue or missing underlying soft tissue. Additionally, the examiner noted no abnormal pigmentation or texture, or gross distortion or asymmetry of facial features or visible or palpable tissue loss. Based on the examiner’s finding that the Veteran’s condition required constant systemic therapy required during the past 12-month period, a February 2013 rating decision granted an increased 60 percent evaluation effective October 23, 2012, pursuant to DC 7806. At the time of the February 2013 rating decision, the rating criteria under 38 C.F.R. § 4.118, DC 7806, assigned a 10 percent disability rating for at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of the exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating was warranted for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted for more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118. In an October 2012 addendum, the examiner was asked to clarify the medications the Veteran had taking during the past 12-months. Additionally, the examiner was asked to state whether the information as to Veteran’s medication was based on the medical record or the Veteran’s lay statements. The examiner stated that it was less likely that the skin condition was treated with systemic corticosteroid or immunosuppressive medication constantly or near constantly for the past 12-months. In this regard, the examiner noted that furunculosis was generally treated for less than 6-weeks with an antibiotic. The examiner further stated that he could not resolve any conflicting information noted in the examination report without resorting to mere speculation. The Veteran underwent another VA examination in May 2015. The examiner noted a diagnosis of furunculosis of the scalp. The Veteran reported symptoms that came and went with occasional bleeding after hair-cuts and specifically denied using prescription medication for his condition. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. The examiner noted that the condition did not cause scarring or disfigurement of the head, face or neck. The Veteran was further found not to have had any debilitating or non-debilitating episodes in the past 12-months, nor did the condition cause urticaria, primary cutaneous vasculitis, erythema multiforme or toxic epidermal necrolysis. The condition was found to cover less than 5 percent of the total body area and more than 5 but less than 20 percent of the exposed body area. The examiner described the skin condition as locations with tracking of skin at top of scalp. The Veteran’s condition was active at the time of examination. Based on the Veteran’s report that his skin condition no longer required medication with no reported debilitating episodes noted during the past year, the June 2015 rating decision proposed to reduce the rating to 10 percent pursuant to DC 7806 based on symptomatic furunculosis affecting less than 20 percent of the entire body. After a review of the evidence of record at the time of the September 2015 rating decision, the Board finds that the preponderance of evidence established improvement in the Veteran’s furunculosis of the scalp. Specifically, the evidence of record showed that the furunculosis was not being treated by medication and covered an area less than 20 percent of the exposed area. Additionally, at the time of the September 2015 rating decision, the Veteran’s furunculosis was not found manifested by a scar with more than one characteristic of disfigurement. Accordingly, the Board concludes that the reduction in evaluation from 60 percent to 10 percent was appropriate based on the evidence then of record. 38 C.F.R. §§ 3.344, 4.118, DCs 7800, 7806. 2. PTSD By way of history, the Veteran filed a service connection claim for PTSD in February 2009. The Veteran was previously granted service connection for dyssomnia in a June 2007 rating decision and assigned a 30 percent evaluation. In a May 2009 rating decision, the RO granted service connection for PTSD with dyssomnia and assigned a 70 percent rating pursuant to 38 C.F.R. § 4.130, DC 9411. As of December 1, 2015, the RO reduced the disability rating to 50 percent disabling. The Veteran disagrees with the reduction in his rating. In the present case, the 70 percent evaluation for the service-connected psychological disability had been in effect for more than five years at the time the reduction took place. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) apply. Accordingly, in the present case a reduction may be accomplished when sustained improvement has been demonstrated, and when the rating agency determines that it is reasonably certain that the improvement will be maintained under the ordinary conditions of the Veteran’s life. 38 C.F.R. § 3.344(a). Further, “examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.” Id. 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). The burden is on VA to justify a reduction in a rating. See Brown, 5 Vet. App. at 413 (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). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the Veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. After a review of the evidence of record, the Board finds that VA has not established the rating reduction was proper and it is therefore void. Pursuant to DC 9411, a 50 percent rating is assigned for a psychiatric disorder manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned for a psychiatric disorder manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). As noted above, a May 2009 rating decision granted service connection for PTSD and assigned a 70 percent evaluation. That evaluation was based on symptoms noted during a February 2009 VA examination. That examination noted the following symptoms: nightmares; flashbacks; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and, exaggerated startle response. The extent of impulse control was noted as fair. The Veteran was also found oriented to person, time and place. He was noted as easily distractible. A GAF score of 55 was assigned, however, the examiner did not provide a finding as to the Veteran’s level of occupational and social impairment. A review of the May 2009 rating decision found that a 70 percent evaluation was warranted based on the following symptoms; hypervigilance; memory problems; near-continuous depression and anxiety; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships; and, nightmares and flashbacks. The Veteran underwent another VA examination in November 2012. The examiner noted that the diagnosed PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A GAF score of 70 was assigned. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; flashbacks, nightmares, irritability or outbursts of anger; hypervigilance; exaggerated startle response; and, mild memory loss. A February 2013 rating decision continued the 70 percent rating but found that the November 2012 VA examination noted improvement. However, sustained improvement was not noted to have been definitely established. The rating decision further noted that since there was a likelihood of improvement, the assigned 70 percent evaluation was not considered permanent and was subject to a future examination. Thereafter, the Veteran underwent a VA examination in May 2015. The examiner noted a diagnosis of PTSD manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran’s spouse reported that he was jumpy, irritable and always up throughout the night. The Veteran reported that he currently worked for the Marine Corp doing training, a job he held for the past six-years, and that he had not missed any days of work. The examiner noted symptoms of irritable behavior and angry outbursts, hypervigilance, exaggerated startle response and sleep disturbance. In addition, the examiner noted the following: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Board notes that the June 2015 rating decision that proposed a rating reduction, and the September 2015 rating decision that implemented the reduction, noted that a higher 70 percent evaluation was not warranted unless more severe symptoms were present including impaired impulse control or difficulty in adapting to stressful circumstances including work or a worklike setting. However, VA examinations conducted throughout this time-period clearly show the Veteran’s PTSD manifested by the same symptomatology, including irritable behavior and angry outbursts, difficulty in adapting to stressful circumstances including work or a worklike setting, hypervigilance, depression and anxiety. Accordingly, as the service-connected PTSD has been manifested by the same symptoms throughout this period on appeal, the Board cannot conclude that the preponderance of the evidence clearly reflected sustained improvement. See Brown, 5 Vet. App. at 413 (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). For these reasons, the Board finds that the reduction of the disability rating for PTSD was not proper and the 70 percent disability rating is restored. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel