Citation Nr: 21061397 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-66 474 DATE: October 1, 2021 ORDER The reduction in rating from 40 percent disabling to 20 percent disabling for diabetes mellitus type II with erectile dysfunction, effective December 1, 2016, was improper and the 40 percent rating is restored. REMANDED Entitlement to a rating in excess of 40 percent for diabetes mellitus type II with erectile dysfunction is remanded. Entitlement to a rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to March 14, 2016 and in excess of 70 percent thereafter is remanded. Entitlement to an initial rating for diabetic retinopathy in excess of 10 percent is remanded. FINDINGS OF FACT 1. The Veteran's 40 percent rating for diabetes mellitus type II had been in effect for longer than five years at the time of the rating reduction on December 1, 2016. 2. The Agency of Original Jurisdiction (AOJ) did not properly apply the provisions of 38 C.F.R. § 3.344 when reducing the rating for diabetes mellitus type II in the April 2020 rating decision. CONCLUSION OF LAW The reduction of the rating for diabetes mellitus type II with erectile dysfunction from 40 percent disabling to 20 percent disabling, effective December 1, 2016, was improper and the 40 percent rating is restored. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from December 1967 to December 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2016 rating decision, the AOJ reduced the rating for the Veteran's diabetes mellitus type II, rated at 40 percent disabling from January 17, 2005 to December 1, 2016, to 20 percent disabling as of December 1, 2016. The rating decision also deferred an evaluation for diabetic retinopathy. A subsequent September 2016 rating decision assigned a separate 10 percent rating for diabetic retinopathy, effective August 31, 2016. The Veteran was scheduled to appear at a Travel Board Hearing before a Veteran Law Judge on August 4, 2021. However, the Veteran failed to appear without good cause shown and therefore the Board considers the hearing request withdrawn. 1. The reduction in rating from 40 percent disabling to 20 percent disabling for diabetes mellitus type II, effective December 1, 2016, was improper and the 40 percent rating is restored. A veteran's 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, VA is required to comply with several general 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). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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. In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the 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 evaluation of the disability, that each 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. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). The provisions of 38 C.F.R. § 3.344 (a) and (b) further provide certain procedural protections to a veteran with regards to reductions of rating. As noted above, the regulation is applicable if the evaluation was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Here, the prior rating for the Veteran's diabetes mellitus was in effect for over five years. Thus, the provisions of 38 C.F.R. § 3.344 (a) and (b) apply in this case. In considering whether a reduction was proper, 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 had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, supra. At issue is the propriety of the RO's decision to reduce the Veteran's rating for his diabetes mellitus type II from 40 percent disabling to 20 percent disabling, effective December 1, 2016. Prior to the reduction, the 40 percent rating for diabetes was in effect for more than five years from January 17, 2005 to December 1, 2016. The reduction in rating, therefore, could not be effectuated without meeting the requirements of 38 C.F.R. § 3.344 (a) and (b). That is, the greater protections afforded to the Veteran under provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable in the present case. To properly reduce a rating, VA must meet both procedural and substantive benchmarks. Procedurally, where the reduction in the rating of a service-connected disability 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 will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In a May 2014 rating decision and notice letter dated the same month, the AOJ informed the Veteran of the proposal to reduce the rating assigned for his diabetes mellitus type II, from 40 percent disabling to 20 percent disabling, which would accordingly reduce his combined rating for all service-connected disabilities from 100 percent to 90 percent. The Veteran was given a period of 60 days after that letter to submit evidence showing that the rating should not be reduced. The Veteran was also provided written notice of the final action. The reduction was effectuated in a September 2016 rating decision and the effective date of the reduction, December 1, 2016 was provided. Therefore, the record indicates that the RO complied with the specific notice provisions applicable to rating reductions. See 38 C.F.R. § 3.105(e). The Board must now consider whether the reduction in rating was proper. In cases such as this, where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, supra. A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The five-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). The AOJ appears to have reduced the rating for the Veteran's diabetes mellitus based upon on the results of two followup VA examination, dated in October 2012 and August 2016. The examiners indicated the Veteran's treatment included prescribed oral hypoglycemic agents and insulin with more than one injection per day. The examiners noted the Veteran did not require regulation of activities. The examiners noted the Veteran did not have any episodes of ketoacidosis or hypoglycemia reactions requiring hospitalization in the past 12 months. However, the Veteran submitted a July 2016 letter from his treating physician Dr. W. The provider noted that the Veteran requires medications including insulin aspartate, Metformin, and insulin glargine to treat his diabetes mellitus. The provider noted that despite these medications and due to the fact of a recent head and neck cancer, which makes his dietary intake difficult for him to regular, it is noted he has wide fluctuation in his glucose, classifying him as a "brittle" diabetic. The provider further noted that the Veteran also has diabetic nephropathy, diabetic retinopathy, and diabetic neuropathy and that the latter two conditions even with excellent control, which he does not have, are progressive conditions and expected. The provider noted that the Veteran also had at least one episode requiring and emergency room visit (May 2016) felt to be related to hypoglycemia, which made him weak and reportedly caused him to pass out twice. In short, he has significant difficulty controlling his diabetes mellitus type II with at least three of the four major complications in the provider's opinion. In this case, the Board finds that the September 2016 rating decision did not properly apply the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. Specifically, the RO did not address whether any demonstrated improvement in the Veteran's ability to function would be maintained under the ordinary conditions of life and work. 38 C.F.R. §§ 4.1, 4.2, 4.13; Schafrath v. Derwinski, supra. This is especially relevant giving the findings of Dr. W., the Veteran's treating physician. The Board emphasizes that the failure to properly apply the provisions of 38 C.F.R. § 3.344 renders a rating reduction void ab initio. Such an omission is error and not in accordance with the law. Greyzck v. West, supra; Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, supra. In considering whether a reduction was proper, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, supra. Failure to consider and apply the applicable provisions of 38 C.F.R. § 3.344 in such cases renders the rating decision void ab initio, that is, void from the beginning. See Greyzck, 12 Vet. App. at 292, see also Hayes v. Brown, supra; Dofflemeyer v. Derwinski, supra; Schafrath v. Derwinski, supra. Accordingly, the reduction in rating for the Veteran's diabetes mellitus type II from 40 percent disabling to 20 percent disabling is not proper and is void ab initio. Thus, the 40 percent rating must be restored effective December 1, 2016. As the outcome warranted in view of this procedural defect, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. As such, the Board concludes that VA has not met its burden to show improvement in the Veteran's ability to function under the ordinary conditions of life and work based on improvement in his diabetes mellitus type II. Thus, the rating reduction also did not adequately detail the reasons for the reduction, such that the Veteran would understand what evidence would be sufficient to show that compensation payments should be continued at their present level. As a result, the Board concludes that the AOJ reduced the rating without observing the protections in place under 38 C.F.R. § 3.344. Accordingly, the September 2016 rating reduction for diabetes mellitus type II is void ab initio and the 40 percent rating shall be restored effective December 1, 2016. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for diabetes mellitus type II is remanded. The Veteran asserts a higher rating is warranted for his service-connected diabetes mellitus type II with erectile dysfunction. A May 2019 VA progress note indicated the Veteran has an admission in November 2018 at the Bronx VA due to non-ketonic hyperglycemic hyperosmolar coma and was also admitted in February 2019 at private medical center for the same reason. The Board notes that VA treatment records are only dated through June 2017 with the single progress note dated in May 2019. As there is clearly evidence of outstanding VA and private treatment records relevant to the Veteran's diabetes mellitus type II claim, the Board finds a remand is necessary. Additionally, the last VA examination for the Veteran's diabetes mellitus type II is in August 2016. As noted above, the Veteran did not have any episodes of ketoacidosis or hypoglycemia reactions requiring hospitalization in the past 12 months. However, the May 2019 VA progress note seems to suggest worsening of the Veteran's diabetes. As such, a VA examination is necessary to determine the current nature and severity of the Veteran's diabetes mellitus type II. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). 2. Entitlement to a rating for PTSD in excess of 50 percent prior to March 14, 2016 and in excess of 70 percent thereafter is remanded. As the requested outstanding VA records may also include treatment for the Veteran's service-connected PTSD, the Board finds the Veteran's claim for an increased rating for PTSD must also be remanded. 3. Entitlement to an initial rating for diabetic retinopathy in excess of 10 percent. Regarding the claim of entitlement to an entitlement to an increased rating for diabetic retinopathy, the Veteran submitted a timely notice of disagreement with a September 2016 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an increased rating for diabetic retinopathy. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 3. Following the receipt of outstanding records, afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected diabetes mellitus, type II, and all associated complications. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be completed 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. A rationale for any opinion offered should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.