Citation Nr: 20021654 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-32 962 DATE: March 26, 2020 ORDER The Agency of Original Jurisdiction (AOJ) having properly reduced the rating assigned the Veteran’s superior oblique palsy, left eye, from 10 to 0 percent, the claim of entitlement to a rating greater than 10 percent for such disability is denied. New and material evidence having been received, the claim of entitlement to service connection for a right eye disability is reopened. To this extent only, the claim is granted. REMANDED The claim of entitlement to service connection for a right eye disability is remanded. FINDINGS OF FACT 1. The 10 percent rating assigned the Veteran's left eye disability had been in effect for less than five years when, in January 2017, the AOJ reduced that rating to 0 percent. 2. The January 2017 rating reduction did not reduce the Veteran's overall VA compensation payments. 3. At the time of the reduction, evidence of record disclosed what equated to improvement in the Veteran’s left eye disability that would be maintained in the future under the ordinary conditions of life. 4. In an October 2007 rating decision, which the Veteran did not appeal, the AOJ denied service connection for a right eye disability. 5. The evidence received since October 2007 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for a right eye disability. CONCLUSIONS OF LAW 1. The AOJ having properly reduced the rating assigned the Veteran’s superior oblique palsy, left eye, from 10 to 0 percent, the criteria for restoration of the 10 percent rating, and the assignment of a rating greater than 10 percent, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344(c), 4.1, 4.3, 4.79, Diagnostic Codes (DCs) 6026, 6080. 2. The October 2007 rating decision denying service connection for a right eye disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a right eye disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1971 to December 1974 and from April 1977 to December 1977. These claims come before the Board of Veterans’ Appeals (Board) on appeal of a January 2017 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of these claims at a hearing held before the undersigned at the AOJ in January 2020. A transcript of the hearing is of record. Entitlement to a rating greater than 10 percent for superior oblique palsy, left eye, including the question of whether the AOJ properly reduced the 10 percent rating to 0 percent In an October 2015 rating decision, the AOJ granted the Veteran service connection for a left eye disability and assigned that disability an initial 10 percent rating, effective August 11, 2015. In October 2016, the Veteran filed a claim for an increased rating for his left eye disability. In a January 2017 rating decision, the AOJ decided the claim, reducing the rating assigned the left eye disability from 10 to 0 percent. The Veteran seeks restoration and an increase of the 10 percent rating. Being afraid of eye doctors, he claims that he has not sought left eye treatment; he does, however, get his eyes checked yearly. He questions why the AOJ decreased the rating assigned his left eye disability on the basis of one doctor’s opinion that he does not have palsy when, for years, his private doctor has consistently diagnosed that condition. The Veteran requests the Board to apply the benefit of the doubt in deciding this claim as the favorable and unfavorable evidence is in relative equipoise. The preponderance of the evidence is against this claim. Propriety of Rating Reduction Where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction in 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. In addition, the RO must notify the claimant that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). Here, the AOJ's January 2017 rating reduction did not result in a reduction in the Veteran's VA compensation payments. Prior to the reduction, the Veteran was receiving VA compensation for combined disabilities at the 60 percent rate, and, after the reduction, he continued to receive VA compensation for combined disabilities at the 60 percent. As such, the procedural requirements of 38 C.F.R. § 3.105(e) are not applicable here. The question thus becomes whether the reduction was proper based on the applicable regulation, 38 C.F.R. § 3.344. Under 38 C.F.R. § 3.344, sections (a) and (b) are to be applied in cases involving a rating that had continued at the same level for five years or more; section (c) is to be applied if the AOJ reduced a rating that had been in effect for less than five years. See Faust v. West, 13 Vet. App. 343, 351 (2000) (noting that § 3.344(c) sets forth the provisions relating to disabilities which are likely to improve, indicating that "[t]he provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more)"); see also Brown v. Brown, 5 Vet. App. 413, 417 (1993) (holding that five-year period in § 3.344(c) is to be measured from effective date of rating not from date of AOJ decision assigning that rating). In this case, in reducing the 10 percent rating assigned the Veteran's left eye disability to 0 percent, effective November 23, 2016, the AOJ reduced a rating that had been in effect for less than five years, since August 11, 2015. Therefore, section (c) is applicable. Under 38 C.F.R. § 3.344(c), reexaminations disclosing improvement of a condition warrant a reduction in the evaluation assigned the condition. The evidence need not show sustained improvement, as alleged. However, in all rating reduction cases, including those analyzed under 38 C.F.R. § 3.344(c), the adjudicator must determine not only whether there is actual improvement in the disability at issue, but also whether such improvement extends to a Veteran's ability to function under ordinary conditions and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1999) (in analyzing a reduction, VA must ascertain: (1) whether evidence reflects an actual change in disability; (2) whether examination reports reflecting such change are based upon thorough examinations; and (3) whether improvement in disability reflects improvement in ability to function under the ordinary conditions of life and work); see also Hedgepeth v. Wilkie, 30 Vet. App. 318, 323-24. This is an interesting case, perhaps one that should have resulted in the AOJ finding error in its October 2015 rating decision service connecting the Veteran’s left eye disability, rather than reducing the rating initially assigned such disability. To better understand the AOJ’s January 2017 rating reduction, knowledge of the procedural history is required. The Veteran injured his left eye in service. According to service treatment records, in 1973, the Veteran was hospitalized for three days after having been “beaten up”, an incident that resulted in fractured left ribs, facial abrasions and injuries to the left cheek and eye, nose, upper abdomen, back and possibly spleen. Following this incident, the Veteran underwent multiple in-service examinations, lastly in December 1977, during which he never reported any residuals of the beating, and medical professionals noted normal clinical evaluations of his eyes. The Veteran did not mention his eyes until July 2004, decades after discharge, when he filed a claim for service connection for an “eye condition”. That year, a doctor first rendered an eye diagnosis (age-related bilateral cataracts). Beginning in 2005, medical professionals diagnosed other eye conditions, including partial third nerve palsy and a corneal scar affecting the right, not left, eye. In October 2015, however, the Veteran underwent a VA eye examination, during which an examiner found partial third nerve palsy less likely and diagnosed superior oblique palsy, but on the left, not right, secondary to the Veteran’s reported history of left eye trauma. Rather than seek clarification as to the affected eye (all other medical records showing right, not left, eye involvement/partial third nerve palsy), in an October 2015 rating decision, the AOJ service connected the Veteran for his left eye disability and assigned that disability an initial 10 percent rating. Thereafter, treatment records and an August 2016 VA physician’s statement continued to show that it was the Veteran’s right, not left, eye that was affected. In November 2016, after the Veteran filed a claim for an increased rating for his service-connected left eye disability, the AOJ finally sought clarification regarding the October 2015 left eye diagnosis. The same VA examiner who rendered that diagnosis clarified that the Veteran did not have a left eye disability. She questioned the prior right eye diagnosis of partial third nerve palsy and indicated that the appropriate diagnosis was Browns Tendon Sheath Syndrome in the right eye. Since then, no medical professional has diagnosed a left eye disability. When the AOJ reduced the rating at issue in January 2017, it did not do so based on a finding of improved left eye symptoms. Rather, it found that, per the VA examiner, the Veteran no longer had a left eye diagnosis of superior oblique palsy. In actuality, although the Veteran had once been diagnosed with left eye palsy, such diagnosis was rendered mistakenly, and, during the appeal, he never manifested any symptoms of superior oblique palsy or any other nerve condition that would be subject to improvement. The Veteran has questioned why the AOJ decreased the rating assigned his left eye disability on the basis of one doctor’s opinion that he does not have palsy when, for years, his private doctor has consistently diagnosed that condition. However, the AOJ did not decrease the rating on the basis that the Veteran does not have palsy, but rather, on the basis that he does not have palsy affecting his service-connected left eye. As the Veteran alleges, the Veteran’s treatment providers confirmed the presence of this condition on multiple occasion during the appeal, but affecting the right, not left, eye. Given that the AOJ reduced the rating assigned the Veteran’s left eye disability, rather than taking alternative action, and, at the time of the reduction, evidence of record disclosed what arguably equated to improvement in the Veteran’s left eye disability (no evidence of left eye nerve damage during appeal or to follow), the Board finds that the reduction was proper. The criteria for restoration of the 10 percent rating, and the assignment of a rating greater than 10 percent, are therefore not met. The evidence in this case is not in relative equipoise; therefore, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right eye disability The RO previously denied the claim for service connection for a right eye disability on multiple occasions, including in an October 2007 rating decision. In deciding that claim, the RO considered the Veteran's service and post-service treatment records and a VA examination report. The RO denied the claim on the basis that there was no link between a right eye disability and the Veteran’s service. The Veteran did not appeal the October 2007 rating decision, and VA received no new and material evidence within one year of the decision. 38 C.F.R. § 3.156(b). It is therefore final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran attempted to reopen the claim in April 2013, and, due to his continuous filing of new and material evidence following multiple denials, that claim has since remained pending. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the claim on any basis. Evans v. Brown, 9 Vet. App. at 273. The pertinent evidence that has been associated with the claims file since the October 2007 rating decision includes post-service treatment records, VA examination reports and medical opinions, the Veteran’s written statements and hearing testimony, and statements from individuals who served with the Veteran. This evidence, neither cumulative nor redundant of the evidence previously of record, is new. It is also material. By itself or when considered with the evidence previously of record, it relates to an unestablished fact necessary to substantiate this claim. Specifically, treatment records and medical opinions relate nerve damage in the Veteran’s right eye to the in-service beating, which he reported involved both eyes. As the AOJ previously denied this claim based on the absence of such evidence, these records constitute new and material evidence to reopen this claim. REASONS FOR REMAND Entitlement to service connection for a right eye disability The evidence of record conflicts regarding whether the Veteran’s right eye disability, however diagnosed, is related to his active service. An opinion reconciling the conflicting evidence of record is therefore needed. The matter is REMANDED for the following action: Transfer this case to a VA examiner who has not previously evaluated the Veteran for an opinion on the etiology of the Veteran’s right eye disability(ies). The examiner should review all pertinent documents of record, including: (a) service treatment records showing 1973 face, cheek, left eye and other injuries secondary to a beating; (b) lay statements from JH and PP describing the aftermath of the in-service beating; (c) the Veteran’s reported medical histories, initial contention that he injured his left eye during service, and subsequent contention that he injured both eyes during service and has since experienced continual residuals of the injury; (d) post-service treatment records showing multiple right eye diagnoses since 2004; (e) October 2004, September 2015 and November 2016 VA examination reports, the middle of which was later determined to include faulty findings; (f) an August 2016 Eye Conditions Disability Benefits Questionnaire; and (g) the Veteran’s hearing testimony. The examiner should list all right eye disabilities diagnosed since 2013. Indicate if any of these disabilities is congenital and, if so, whether it represents a disease or defect. The examiner should then offer an opinion as to whether each disability is at least as likely as not (50 percent or greater probability) related to the Veteran’s service, including the 1973 beating. For each disability found to be a congenital disease, offer an opinion as to whether it worsened during service, including secondary to the 1973 beating. For each disability found to be a congenital defect, offer an opinion as to whether, during service, it was subject to superimposed injury and increased in disability. The examiner should provide rationale for each opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N., Counsel 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.