Citation Nr: 21005044 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-01 086 DATE: January 28, 2021 ORDER Restoration of a 100 percent rating for service-connected neurocognitive disorder is GRANTED, effective May 1, 2016, the date of the reduction (that is, the disability rating is being restored as if the reduction had never occurred). Restoration of a 100 percent rating for service-connected Churg-Stauss syndrome and pulmonary fibrosis is GRANTED, effective May 1, 2016, the date of the reduction (that is, the disability rating is being restored as if the reduction had never occurred). Restoration of the special monthly compensation (SMC) based on statutory housebound criteria being met is GRANTED, effective May 1, 2016, the date of the discontinuance (that is, SMC is being restored as if the discontinuance had never occurred). FINDINGS OF FACT 1. At the time of the reduction, the disability rating for the Veteran’s neurocognitive disorder had been in effect for over five years (since October 2006). The March 2015 examination is less full and complete than the examination resulting in the Veteran’s disability award. Further, the January 2016 neuropsychology consult examiner found that the Veteran’s current condition was generally consistent with the results of his 2009 neuropsychological evaluation except both semantic fluency tasks were impaired (in 2009 one was average) and word list learning, recall and recognition were in the impaired range whereas in 2009 they were intact. Therefore, the overall evidence does not clearly show that there are improvements in the Veteran’s ability to function under the ordinary conditions of life and work in light of his cognitive disorder at the time of the reduction; the reduction was improper. 2. The reduction in the disability rating for the Veteran’s Churg-Strauss syndrome and pulmonary fibrosis was not proper. The February 2016 rating decision, which reduced the disability rating, demonstrates that the Agency of Original Jurisdiction (AOJ) appears to have analyzed the issue of reduction of the 100 percent rating in the same manner as it would analyze an increased rating claim. Specifically, the AOJ did not address whether there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work, as required by the pertinent regulation. Also, the Veteran’s current disability rating is rated by analogy and the May 2015 VA respiratory examination report did not include complete diagnostic testing to allow for review of the Veteran’s actual disability and also did not assess his ability to function under the ordinary conditions of life. Further, the Board assigns greater probative weight to the March 2016 note from the Veteran’s treating physician opining that the condition has not improved, because the physician is more familiar with the Veteran’s current condition and disability history and because the opinion more thoroughly described actual medical condition. 3. SMC was only discontinued because the Veteran was no longer eligible for SMC after the disability ratings for his cognitive disorder and Churg-Strauss syndrome and pulmonary fibrosis were reduced; now that those disability ratings are being restored on the basis that the evidence does not show that the Veteran’s ability to function under the ordinary conditions of life has improved, the SMC must also be restored. CONCLUSIONS OF LAW 1. The criteria have been met for restoration of a 100 percent rating for service-connected cognitive disorder. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.344. 2. The criteria have been met for restoration of a 100 percent rating for service-connected Churg-Strauss syndrome and pulmonary fibrosis. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.344. 3. The criteria have been met for restoration of (statutory housebound) SMC. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to April 2001. These matters are before the Board of Veterans’ Appeals (the Board) on appeal from a February 2016 decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, AZ. The Veteran initiated his appeal for the above issues in February 2016 and perfected the appeals in December 2016. In June 2019, a hearing was held before the undersigned Veterans Law Judge but the hearing transcript was inaudible. In December 2020, the Veteran was offered the opportunity to have an additional hearing but elected for the Veteran’s Law Judge to make a decision based on the evidence of record. The Board notes that the February 2016 notice of disagreement referenced “evaluation of disability” for the two medical conditions on appeal and did not specifically refer to SMC. However, it is well established that when a veteran disagrees with VA’s evaluation of a service-connected disability, that includes more than just the disability in question but also any associated benefits raised by the evidence. See, e.g. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a TDIU rating claim is part of a claim for a higher rating when asserted by the Veteran or raised by the record, for example, by evidence of unemployability). The Board also notes that the February 2016 rating decision recharacterized one of the Veteran’s medical conditions, stating that it was reducing benefits for “mild neurocognitive disorder (previously rated as cognitive disorder, not otherwise specified)” (emphasis added). The Board finds that this recharacterization was inappropriate because it conflates the name of the medical condition with its severity. Therefore, the Board has also recharacterized the medical condition to its original description of “cognitive disorder, not otherwise specified.” The Board would like to take this opportunity to express its sincere apologies for the numerous problems that the Veteran experienced during the adjudication process while also living with these significant disabilities. For the reasons explained above, the Board finds that the VA’s February 2016 reduction of two disability ratings and discontinuance of SMC were not proper and were, therefore, void ab initio (that is, they must be treated as if they had never happened). Accordingly, the two disability ratings and SMC are restored. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arritt, David 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.