Citation Nr: 21062673 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-67 573 DATE: October 8, 2021 ORDER The rating reduction of the Veteran's ulcerative colitis, status post proctocolectomy, from 100 percent disabling to 30 percent disabling, effective February 1, 2015, was not proper; therefore, the 100 percent rating is restored, effective February 1, 2015. FINDING OF FACT The evidence used to reduce the rating for the Veteran's ulcerative colitis, status post proctocolectomy, from 100 percent to 30 percent did not show improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the rating of the Veteran's ulcerative colitis, status post proctocolectomy, from 100 percent disabling to 30 percent disabling, effective February 1, 2015, was not proper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105 (e); 3.344(c); 4.1, 4.114, Diagnostic Code 7333. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1974 to February 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in March 2020 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In August 2020, the Board remanded this claim for additional development. Regarding the issue of the propriety of the reduction of the Veteran's disability rating for his ulcerative colitis, the Board notes that this matter does not include a claim for an increased rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (explaining that the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). Whether the reduction in the rating for the Veteran's ulcerative colitis, status post proctocolectomy, from 100 percent disabling to 30 percent disabling, effective February 1, 2015, was proper. A July 1977 rating decision granted service connection for the Veteran's ulcerative colitis, and assigned a rating of 30 percent, effective February 2, 1977. In a December 2009 rating decision, the Veteran was granted a temporary 100 percent rating, effective July 6, 2009, for hospitalization over 21 days, for ulcerative colitis, status post total proctocolectomy, and a 100 percent evaluation was also assigned thereafter, effective November 1, 2009. The Veteran was notified of a proposed reduction in his rating to 30 percent in November 2013. On November 7, 2014, based on the evidence of record, the Veteran's rating was reduced to 30 percent, effective February 1, 2015. A notice of disagreement with the reduction was received in July 2015. A November 2020 rating decision increased the Veteran's rating to 50 percent, effective November 9, 2020. The Veteran asserts that the reduction was not proper. VA regulations allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after VA follows certain procedural guidelines. 38 C.F.R. § 3.105 (e). As a preliminary matter, the Board notes that the Veteran does not contend any noncompliance with the procedural requirements for rating reductions. 38 C.F.R. § 3.105 (e). The Board does not find any procedural deficits. Thus, the Board will focus on whether the facts warrant a rating reduction. Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients, however, may be afforded greater protections under 38 C.F.R. § 3.344 (a) and (b), which set forth the requirements for reduction of ratings in effect for five years or more. The requirements prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. These provisions also prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those with ratings in effect for less than five years), reexaminations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Specifically, in such cases it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344 (c). Additionally, in determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of rating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. At the time the RO reduced the rating for the Veteran's ulcerative colitis, status post total proctocolectomy, in November 2014, his 100 percent rating had been continuously in effect since November 2009, a period of five years. As such, the provisions of 38 C.F.R. § 3.344 (a) and (b), regarding evidentiary requirements for a disability rating in effect for a period of five years or more, are applicable. Ratings in effect for five years or more may be reduced only if there is evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations. The provisions prohibit a reduction on the basis of a single examination. 38 C.F.R. § 3.344 (a), (b); see Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). Furthermore, 38 C.F.R. §§ 4.2 and 4.10, taken together, mandate that in any rating reduction, irrespective of the time that the disability rating has been in effect, it must not only be determined that an improvement in a disability has actually occurred, "but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work." Faust v. West, 13 Vet. App. 342, 349 (2000) (citing Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993); cf. 38 C.F.R. § 4.10. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ's reduction was warranted. See Brown (Kevin), supra; Kitchens v. Brown, 7 Vet. App. 320 (1995). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The Veteran's ulcerative colitis, status post total proctocolectomy, is rated under Diagnostic Code (DC) 7333. Under DC 7333, a 30 percent rating is warranted for moderate reduction of lumen or moderate constant leakage. A 50 percent rating is warranted for great reduction of lumen or extensive leakage; and a 100 percent rating is warranted for a colostomy. See 38 C.F.R. § 4.114, Diagnostic Code 7333. In the instant case, the Veteran was assigned a 100 percent disability rating based on VA records reporting that in July 2009, he underwent a total proctocolectomy/j- pouch ileoanal anastomosis (IPPA), loop ileostomy, and repair of umbilical hernia. He had a standard recovery course complicated by an abdominal abscess and he had two drains in place at the time he was released home. He also had a colostomy. He had no other complications and was released to home in August 2009; however, in September 2009, he was admitted for volume depletion and discharged approximately a week later, in an improved condition. He was admitted and discharged again in September 2009, for sepsis and dehydration. Treatment reports in October 2009 indicated he returned for follow-up and was doing well. The Veteran had an ileostomy takedown in November 2010. A follow up treatment note in November 2010 indicates the Veteran was doing "fairly well" but that he was having multiple bowel movements with leakage of stools that required wearing a diaper and a pad. He also had some perianal excoriations and was taking 2 loperamides, twice a day, and metamucil. His ileostomy site incision was healing well, however, the physician indicated the Veteran should increase his medication to 8 pills a day and to continue with Kegel exercises. The Veteran was afforded a VA examination in April 2013. It was noted that the Veteran had ulcerative colitis, status post total proctocolectomy. The Veteran reported having four soft bowel movements during the day and five soft bowel movements at night, with leakage requiring four pads every 24 hours. The examiner indicated the Veteran had leakage that necessitates wearing of a pad and had occasional moderate leakage. The Veteran's disability affected his ability to work in that he was prevented from performing heavy lifting or straining. The Veteran was notified in November 2013 that a reduction in his rating was proposed, from 100 percent to 30 percent, stating that a 30 percent rating was warranted for moderate constant leakage. The Veteran's rating was then reduced to 30 percent in a November 2014 rating decision, effective February 1, 2015. The Veteran was afforded a VA examination in November 2014, at which time he reported rectal leakage requiring a pad, which must be changed 6 times in 24 hours. It was also noted that he experienced diarrhea, or soft bowel movements, five to six times per day and four to five times, per night. The examiner again noted that the Veteran was unable to do any heavy lifting or straining. The Veteran testified in March 2020 that his leakage was worse and that he experienced leakage during sleep and in the shower, requiring the use of a pad 24 hours a day. A September 2020 VA examination noted the Veteran had liquid stools five to six times per day, with leakage of stool from his j-pouch. As noted, ratings in effect for five years or more may be reduced only if there is evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations. The provisions prohibit a reduction on the basis of a single examination. When compared to the earlier medical findings, the Board does not find that the April 2013 examination shows improvement. As evidenced in this examination, the Veteran reported four soft bowel movements during the day and five soft bowel movements at night, with leakage requiring four pads every 24 hours. The Veteran's disability affected his ability to work in that he was prevented from performing heavy lifting or straining. Additionally, although the Veteran underwent an ileostomy takedown in November 2010, it was noted that he continued to experience multiple bowel movements with leakage of stools that required wearing a diaper and a pad. On review and considering the objective findings as well as the Veteran's reported symptoms, it cannot be said that the preponderance of the evidence supports a finding of improvement. The Veteran continued to report leakage requiring multiple pads per day and multiple soft/liquid bowel movements per day and night. There was no evidence of improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Veteran continued to be unable to perform any heavy lifting or straining. Furthermore, in the November 2014 rating decision, the RO did not offer any discussion or analysis of the Veteran's current findings with respect to the regulations pertaining to rating reduction cases, and simply applied the rating criteria to the objective findings from the April 2013 VA examination. The RO did not discuss the effect of the Veteran's disability on his ability to function under the ordinary conditions of life and work. Thus, the Board finds that the November 2014 rating decision that reduced the Veteran's ulcerative colitis, status post proctocolectomy, from 100 percent disabling to 30 percent disabling, effective February 1, 2015, was improper and is void ab initio. Accordingly, the 100 percent rating is restored. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.