Citation Nr: 21063775 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-40 740 DATE: October 15, 2021 ORDER A rating in excess of 50 percent for schizoid personality disorder is denied. The rating reduction for asthma from 60 to 0 percent was improper and a 60 percent rating is restored, effective September 1, 2021. REMANDED A rating in excess of 60 percent for asthma is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A June 2021 rating decision severed service connection for schizoid personality disorder. 2. The preponderance of the evidence is against finding sustained material improvement of the Veteran's asthma disability. CONCLUSIONS OF LAW 1. The criteria for an increased rating for schizoid personality disorder are not met. 38 C.F.R. § 3.400(o)(1). 2. The criteria for restoration of a 60 percent rating for asthma, effective September 1, 2021, are met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2013 to March 2015. During the pendency of the increased rating claims on appeal, a June 2021 rating decision severed service connection for schizoid personality disorder and reduced the rating for asthma from 60 percent to 0 percent. In September 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), requesting higher level review of the June 2021 rating decision. In a September 2021 HLR rating decision, the RO adjudicated the severance appeal, but found the rating reduction was under the Board's jurisdiction as part of the pending increased rating claim. See September 2021 codesheet. Therefore, the Board will consider whether the rating reduction for asthma during the increased rating appeal period was proper. Increased Rating Entitlement to a rating in excess of 50 percent for schizoid personality disorder is denied. During the pendency of the appeal for an increased rating for schizoid personality disorder, a June 2021 rating decision severed service connection for schizoid personality disorder. By law, a retroactive increase or an additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o)(1). Therefore, no additional benefit may be awarded and entitlement to an increased rating of schizoid personality disorder must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Reduced Rating The rating reduction for asthma from 60 to 0 percent was improper and a 60 percent rating is restored, effective September 1, 2021. A June 2021 rating decision reduced the Veteran's rating for asthma from 60 percent to 0 percent, effective September 1, 2021. The Veteran contends the reduction was improper and requests restoration of the rating. Looking to the merits, the 60 percent rating for asthma was in effect for over 5 years, from March 31, 2015 to September 1, 2021. Therefore, reduction is warranted when reexamination discloses sustained material improvement. 38 C.F.R. § 3.344(a), (b); see also Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In any rating reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough and adequate examinations; and (3) whether any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10). The initial 60 percent rating for asthma was based on monthly visits to a physician for required care of exacerbations. See April 2015 rating decision. The rating reduction noted the April 2018 VA examination reported chronic low dosage of corticosteroids for treatment; however, there were no medical records showing prescription of corticosteroids since July 2015. See July 2018 and June 2021 rating decisions. Looking to the evidence at the time of the June 2021 rating reduction, an April 2018 VA examination reported persistent asthma flares. The Veteran reported regular treatment with his primary care physician. The examiner noted required use of oral or parenteral corticosteroid medications, inhaled medications, and oral bronchodilators. At an October 2018 DRO hearing and May 2021 Board hearing, the Veteran denied improvement in his asthma. He stated his condition was the same and he takes the same medications. He reported taking Albuterol, Singulair, Dulera, and nebulizer treatments daily. He reported his asthma is treated by his primary care physician, W.L., at Palmetto Primary Care. The preponderance of the evidence is against finding sustained material improvement of the Veteran's asthma. The Veteran's statements at the April 2018 VA examination, October 2018 DRO hearing, and May 2021 Board hearing noted continued regular treatment with persistent asthma flares requiring the use of oral or parenteral corticosteroid medications, inhaled medications, and oral bronchodilators. The Veteran identified relevant outstanding private treatment records for asthma, but the RO made no attempt to obtain the treatment records. Accordingly, the preponderance of the evidence is against finding sustained material improvement in the Veteran's asthma disability. The rating reduction for asthma from 60 to 0 percent was improper and a 60 percent rating is restored, effective September 1, 2021. REASONS FOR REMAND 1. Entitlement to a rating in excess of 60 percent for asthma is remanded. 2. Entitlement to a TDIU is remanded. The Veteran reported receiving regular treatment for asthma from W.L. at Palmetto Primary Care. See October 2018 DRO hearing and May 2021 Board hearing. The RO made no attempt to obtain these records. Additionally, in May 2021, the Veteran submitted a treatment summary list from Center for Primary Care- Central noting visits for asthma. Complete treatment records are needed to evaluate the frequency and severity of the Veteran's asthma disability and impact on his ability to work. Additionally, the Board requests a medical opinion detailing any specific functional limitations of the Veteran's asthma on employment. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for (a.) Palmetto Primary Care and (b.) Center for Primary Care- Central. Make two requests for the authorized records unless it is clear a second request would be futile. 2. After the above records development, obtain a medical opinion from an appropriate clinician regarding the impact of the Veteran's asthma on employment, to include any specific limitations or functional impairment caused solely by asthma. An in-person examination is not required unless deemed necessary by the clinician. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, Associate 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.