Citation Nr: 20021147 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 19-35 333 DATE: March 24, 2020 ORDER The reduction of a disability rating from 30 percent to 10 percent for the Veteran’s service-connected skin disability, effective December 1, 2018, was improper, and restoration of the prior 30 percent rating is granted. REMANDED Entitlement to an increased evaluation in excess of 30 percent for the Veteran’s service-connected skin disability, is remanded. FINDING OF FACT 1. At the time of the September 2018 rating decision reducing the evaluation for the Veteran’s service-connected skin disability from 30 percent to 10 percent, effective December 1, 2018, the Veteran’s 30 percent evaluation had been in effect since October 14, 2015, fewer than five years. 2. At the time of the effective date of the September 2018 rating decision reducing the disability rating for the Veteran’s service-connected skin disability from 30 percent to 10 percent, effective December 1, 2018, a preponderance of the evidence of record did not demonstrate actual improvement in the Veteran’s symptoms since October 14, 2015, or in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the evaluation for the Veteran’s service-connected skin disability from 30 percent to 10 percent was not proper; accordingly, the Veteran’s 30 percent disability evaluation is restored, effective October 14, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.321, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from November 1981 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which reduced the Veteran’s evaluation for his service-connected skin disability from 30 percent to 10 percent, effective December 1, 2018. The Veteran’s Form 9 indicates that he did not request a Board hearing. The reduction of a disability rating from 30 percent to 10 percent for the Veteran’s service-connected skin disability, effective December 1, 2018, was improper, and restoration of the prior 30 percent rating is granted. In April 1996, the Board awarded the Veteran service connection for his skin disability and assigned a 10 percent evaluation effective July 1, 1995. A February 2016 rating decision subsequently assigned a 30 percent evaluation effective October 14, 2015. In December 2016, the Veteran filed a claim for an increased evaluation. A VA examination was obtained in connection with that claim. Based upon a VA examination conducted in January 2017, a June 2017 rating decision proposed reducing the Veteran’s evaluation from 30 percent to 10 percent; thus, a letter dated June 29, 2017, was mailed to the Veteran’s most recent address of record, providing notification of the proposed rating reduction and affording him an opportunity for a hearing, as well as a 60-day window to submit additional evidence in support of continuing his 30 percent disability rating. See 38 C.F.R. § 3.105(e). Although the evidence of record indicates that the June 2017 letter to the Veteran was returned to VA on July 10, 2017, as undeliverable, VA subsequently re-sent the June 29, 2017 letter to the Veteran’s new address on July 17, 2017. However, the evidence of record does not indicate that the Veteran submitted any evidence or information within the 60-day window in response to the July 2017 VA letter. Accordingly, the September 2018 rating decision reduced the Veteran’s evaluation from 30 percent to 10 percent, effective December 1, 2018, and informed the Veteran of this rating reduction in a letter dated September 26, 2018. The Veteran filed a timely notice of disagreement and this appeal followed. In October 2018, the Veteran submitted an increased rating claim, as well as a lay statement contending that his skin condition has worsened since the January 2017 exam. In addition, the Veteran contends that the January 2017 VA examination was inadequate due to the VA examiner’s refusal to examine the totality of the skin areas affected by the Veteran’s current skin condition. Therefore, the Veteran contends that an additional VA examination and the restoration of his 30 percent disability evaluation is warranted. For the reasons set forth below, the Board agrees and finds that the restoration of the Veteran’s 30 percent disability rating for his service-connected skin disability is warranted in this case. VA disability ratings are based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. See 38 U.S.C. § 1155. In no event shall a veteran’s disability rating be reduced unless an improvement in the veteran’s service-connected disability is shown to have occurred. See id. When a veteran’s disability rating is reduced without compliance with applicable VA regulations, the erroneous reduction is void ab initio and must be vacated resulting in restoration of the prior rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 595-96 (1991). Where a reduction in an evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. See 38 C.F.R. § 3.105(e). VA regulations further require that (1) the veteran be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor; (2) the veteran be given 60 days for the presentation of additional evidence to support the continuation of compensation payments at their present level; and (3) if additional evidence is not received within that period, the 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 the beneficiary of the final rating action expires. See id. In this case, the Board finds that the June 2017 rating decision and July 2017 notice letter to the Veteran complied with the notice requirements specified in 38 C.F.R. § 3.105(e). In addition, the rating reduction was communicated in a September 2018 rating decision, effective December 1, 2018, with notice to the Veteran dated September 26, 2018. Accordingly, the Board finds that the requirements of 38 C.F.R. § 3.105(e) have been satisfied, as the requisite 60-day period expired prior to the assignment of the rating reduction effective date. Because the applicable notice and procedural requirements for a rating reduction have been satisfied, the Board may adjudicate the substance of the Veteran’s claim, namely, whether a preponderance of the evidence of record demonstrates actual improvement in the Veteran’s skin disability or in the Veteran’s ability to function under the ordinary conditions of life and work at the time of the September 2018 rating decision reducing the Veteran’s disability rating from 30 percent to 10 percent. Prior to reducing a veteran’s disability rating, VA is required to consider the entire history of the veteran’s disability, 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; see also Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon a review of the entire record, whether the evidence of record reflects an actual change in the Veteran’s disability, and whether the examination reports reflecting such change are based upon a thorough examination. See Faust v. West, 13 Vet. App. 342, 349-50 (2000). Thus, in any rating reduction appeal, not only must it be determined that an improvement in a disability has actually occurred, but also that such improvement actually reflects an improvement in 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). In addressing whether improvement is shown, the last examination on which the disability rating at issue was assigned or continued generally serves as the point of comparison. See Hohol v. Derwinski, 2 Vet. App. 169, 172-73 (1992). However, if the disability rating was continued in order to see if improvement was in fact shown, the comparison point may also include prior examinations. See Collier v. Derwinski, 2 Vet. App. 247, 250 (1992). A rating reduction generally must have been supported by the evidence of record at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281 (1992). Disability ratings which are likely to improve or have been continued at the same level for fewer than five years do not qualify for the protections of 38 C.F.R. § 3.344(a) and (b); instead, such ratings are subject to re-examination that may potentially disclose mental or physical improvement, which if shown, will warrant a reduction in rating. See 38 C.F.R. § 3.344(c). In this case, as stated above, the Veteran was awarded a 30 percent disability rating effective October 14, 2015, which was reduced to a 10 percent rating effective December 1, 2018. Accordingly, the Veteran’s 30 percent disability rating had been in effect for fewer than five years, and therefore, his 30 percent rating is not subject to the heightened protections of 38 C.F.R. § 3.344 (a) and (b). See Brown, 5 Vet. App. at 418-19. Nevertheless, no rating reduction may be implemented unless a preponderance of the evidence of record reflects not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability of the veteran to function under the ordinary conditions of life and work. See id. at 420-21. Where an approximate balance of positive and negative evidence regarding any material issue exists, all reasonable doubt shall be resolved in favor of the Veteran, which requires that a rating reduction must be supported by a preponderance of the evidence. See 38 U.S.C. § 5107(a). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence of record indicates fluctuations in the severity of symptoms during the course of the rating period on appeal, an assignment of staged ratings is permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran’s service-connected skin disability is currently rated as 10 percent disabling under the criteria of Diagnostic Code 7806 for dermatitis or eczema. The Board notes that VA’s Rating Schedule for skin disabilities was revised, effective August 13, 2018; however, as the Veteran’s instant claim was submitted on October 10, 2018, the Board must apply the regulations as amended in August 2018. Diagnostic Code 7806 directs that dermitis and eczema are properly evaluated under the General Rating Formula for the Skin, which provides as follows: (1) a 60 percent evaluation is warranted where the record contains evidence of at least one of the following: (a) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (b) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period; (2) a 30 percent evaluation is warranted where the record contains evidence of at least one of the following: (a) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (b) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period; (3) a 10 percent evaluation is warranted where the record contains evidence of at least one of the following: (a) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected or at least 5 percent, but less than 20 percent, of exposed areas affected; or (b) intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period; and (4) a noncompensable evaluation is warranted where the record contains evidence of no more than topical therapy required over the past 12-month period and at least one of the following: (a) characteristic lesions involving less than 5 percent of the entire body affected; or (b) characteristic lesions involving less than 5 percent of exposed areas affected. See 38 C.F.R. § 4.118, General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-16, 7820-22, 7824 (August 13, 2018). The Veteran contends that because the symptoms of his service-connected skin disability have not actually improved, but have instead worsened, the September 2018 rating decision improperly reduced his evaluation from 30 percent to 10 percent, and his 30 percent disability rating should be restored. The sole issue for adjudication by the Board involves whether a preponderance of the evidence of record demonstrates actual improvement in the Veteran’s skin condition and in the Veteran’s ability to function under the ordinary conditions of life and work from October 14, 2015, to December 1, 2018. See Brown, 5 Vet. App. at 418-19. After careful consideration of the evidence of record, the Board finds that a preponderance of the evidence of record does not demonstrate actual improvement in the Veteran’s skin condition and in the Veteran’s ability to function under the ordinary conditions of life and work from October 14, 2015, to December 1, 2018, and accordingly, the restoration of the 30 percent evaluation for the Veteran’s service-connected skin disability is warranted in this case. In March 2015, the Veteran was afforded a VA examination which culminated in a report finding that the Veteran’s service-connected skin disability affected less than five percent of his total body area, as follows: (1) melasma involved scattered areas of hyperpigmentation in the facial area; (2) keratosis pilaris manifested no evidence of any visible lesions; and (3) folliculitis involved scattered areas of pin-point hyperemic small papules in the lower anterior aspect of both thighs. In December 2015, the Veteran was afforded a second VA examination which culminated in a report finding that the Veteran’s service-connected skin disability affected 20 percent to 40 percent of his total body area, as follows: (1) melasma involved five percent of the total body area and manifested hyperpigmentation areas in maxillaes associated with erythematous rash; (2) keratosis pilaris involved five percent of the total body area and manifested multiple red patches on both legs; and (3) folliculitis involved 20 percent to 40 percent of the total body area and manifested multiple areas of pin-point hyperemic small papules in the anterior aspect of both thighs, anterior and posterior trunk, and buttocks. In January 2017, the Veteran was afforded his third and most recent VA examination which culminated in a report finding that the Veteran’s service-connected skin disability affects between 5 percent to 19 percent of his total body area, and although he had treated his skin condition with Lubriderm cream for six weeks or more, such use was not constant. The January 2017 VA examination report further reflects the Veteran’s report of episodes of exacerbation of his skin condition, to include a rash on his back, chest, and lower extremities, which he treats with a topical cream that alleviates the rash a little and resolves the condition for a couple of months, up to four months. As stated above, in October 2018, the Veteran submitted a lay statement contending that his skin condition has worsened since the January 2017 exam, and that the January 2017 VA examination was inadequate due to the VA examiner’s refusal to examine the totality of all of areas affected by the Veteran’s current skin condition. The Board finds that the Veteran is competent to describe the symptoms of his current skin disability, including the total body area affected, as well as the scope and extent of the VA examination. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). In addition, the Board finds the Veteran’s statements to be consistent with and throughout the record, as the January 2017 VA examination report concedes that the Veteran reports episodes of exacerbation of his skin condition, to include manifestations occurring on his back, chest, and lower extremities. Accordingly, in light of the foregoing and after careful review of the relevant evidence of record, the Board finds that a preponderance of the evidence does not support a reduction in the Veteran’s disability rating from 30 percent to 10 percent, as the Veteran’s competent lay statements and the medical evidence of record indicates that he continues to suffer from the same symptoms reflected in the December 2015 VA examination report, including manifestations occurring on his back, chest, and lower extremities which could quite plausibly affect a total body area of more than 20 percent. Therefore, in light of the foregoing, the Board finds that a restoration of the Veteran’s 30 percent disability rating is warranted in this case, because a preponderance of the evidence of record does not demonstrate actual improvement in the Veteran’s skin condition or in the Veteran’s ability to function under the ordinary conditions of life and work at the time of the September 2018 rating decision. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran’s disability. See Schafrath, 1 Vet. App. at 593. In addition, the Board is not required to address additional issues unless specifically raised by the Veteran or reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Accordingly, in light the foregoing, the Board finds that the reduction of the Veteran’s disability rating from 30 percent to 10 percent was improper, and therefore, a restoration of a 30 percent disability rating for the Veteran’s service-connected skin disability, effective October 14, 2015, is warranted. See Brown, 5 Vet. App. at 420. REASONS FOR REMAND Entitlement to an increased evaluation in excess of 30 percent for the Veteran’s service-connected skin disability, is remanded. Unfortunately, the Veteran’s increased rating claim for his service-connected skin disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. In an April 1996 rating decision, the Veteran was awarded service connection for his skin disability, to include keratosis pilaris, folliculitis, and melasma, and awarded a 10 percent evaluation, effective July 1, 1995. During the period on appeal, the Veteran has been afforded two VA skin examinations, the first in March 2015, and the second in January 2017; however, as stated above, the Veteran submitted an October 2018 lay statement contending that since the January 2017 VA examination, his skin condition has worsened. In addition, the Veteran contends that the January 2017 exam was inadequate due to the examiner’s refusal to examine all areas of skin affected by his current disability; thus, the Veteran has requested that a “fair examination” be conducted to evaluate the current severity of his skin condition. The adjudication of increased rating claims requires a threshold determination of whether the most current assessment of the service-connected disability picture has been submitted into the record. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not accurately reflect the current state of the Veteran’s service-connected disability, a more recent VA examination is warranted. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 C.F.R. § 4.2. Accordingly, because there is an indication that the Veteran’s service-connected skin disability may have increased in severity since the last evaluation, a remand is warranted to obtain a contemporaneous VA examination assessing the current symptomatology and severity of the Veteran’s service-connected skin disability. See 38 C.F.R. § 3.159(c)(4)(i); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, this matter is REMANDED for the following action: 1. Obtain any outstanding relevant private treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and to associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After obtaining any indicated treatment records, the Veteran should be scheduled for a VA examination by an appropriate clinician, other than the March 2015 and January 2017 examiners, to determine the current severity and symptomatology of his service-connected skin disability, to include keratosis pilaris, folliculitis, and melasma. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The entire claims folder should be made available and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all findings should be reported in detail. To the extent possible, the examiner should identify any symptoms and functional impairments due to the skin disability alone and discuss the effect of the Veteran’s skin disability on any occupational functioning and activities of daily living. The examiner must provide an opinion as to the impact of the skin disability alone on employment. The examiner must provide a complete rationale for all opinions expressed and conclusions reached. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.