Citation Nr: 21073604 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 19-38 133 DATE: December 9, 2021 ORDER The reduction in disability rating from 10 percent to noncompensable (zero percent) for diplopia, residuals, left eye superior oblique nerve palsy, postoperative was improper, and restoration of the 10 percent disability rating effective May 21, 2018 is granted. FINDINGS OF FACT 1. The 10 percent disability rating for the Veteran's service-connected diplopia, residuals, left eye superior oblique nerve palsy, postoperative was in effect for more than five years at the time of reduction. 2. The May 2018 VA examination, on which reduction was based, did not show sustained material improvement in the Veteran's service-connected left eye disability. CONCLUSION OF LAW The criteria for restoration of a 10 percent disability rating for diplopia, residuals, left eye superior oblique nerve palsy, postoperative from May 21, 2018 are met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.75-4.78, 4.79, Diagnostic Code 6090-6080. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1979 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and was previously remanded by the Board in July 2020. Rating Restoration As an initial matter, the Board notes that the reduction of the Veteran's left eye disability from 10 percent to noncompensable (zero percent) did not reduce his overall combined disability rating. The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements for disability rating reductions. 38 C.F.R. § 3.105(e). For rating reductions, the law provides that when a rating has been in effect for more than five years at the same level, a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). These provisions prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413 (1993). Where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. 38 C.F.R. § 3.344(c). Here, the Veteran's 10 percent disability rating for his left eye disability was in effect for well over five years (effective from September 1, 2001 and reduced as of May 21, 2018). Therefore, the requirements under 38 C.F.R. § 3.344(a) are applicable to this case. Specifically, the evidence of record must be reviewed to determine whether actual improvement in the Veteran's left eye disability, to include improvement in the ability to function under ordinary conditions of life and work, is demonstrated by the evidence such as to warrant the effectuated reduction. The Board observes that the Veteran's left eye disability rating reduction was based primarily on the results of the May 2018 VA examination which the Board finds does not support that there has been an improvement in the Veteran's left eye disability. Here, the 2018 VA examination report does not describe any material improvement shown to have occurred, nor does the examination report indicate that any material improvement will be maintained during the Veteran's ordinary course of life and work. Throughout the record, the Veteran has been consistent in his reports of continuous diplopic symptoms in his left eye, as referenced in post-service private treatment records. Moreover, the 2001 VA examiner found evidence of left eye diplopia with no visual field defect, while the 2018 VA examiner found that the Veteran's left eye diplopia is a long-standing problem that remains constant and is not correctable by standard spectacles. Further, the 2018 VA examination reflects a left eye visual field defect in the accompanying Goldmann chart, which is not indicative of any material improvement in the Veteran's left eye disability. Upon review of the relevant evidence, the Board finds that the reduction in the rating for the Veteran's service-connected left eye disability was legally improper. The record is silent for evidence demonstrating that the RO considered the provisions of 38 C.F.R. § 3.344 when it reduced the Veteran's disability rating in May 2018. Further, as noted above, the reduction was based on a single VA examination conducted in May 2018 which the Board observes does not support that there has been an actual improvement in the ability to function under the ordinary conditions of life and work or that any material improvement of the Veteran's left eye disability would be maintained under ordinary conditions of life. Accordingly, the Board finds that the Veteran's overall functional ability had not improved by May 2018. The failure to make a finding of sustained material improvement is a defect requiring restoration. Brown, 5 Vet. App. at 421. Moreover, it is well established in the case law of the United States Court of Appeals for Veterans Claims (Court) that VA cannot reduce a Veteran's disability evaluation without first finding that that an improvement has actually occurred in the Veteran's service-connected disability and it has improved to the point that he is now better able to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). As the record does not reflect compliance with all applicable regulations, the Board finds that the reduction in disability rating for diplopia, residuals, left eye superior oblique nerve palsy, postoperative from 10 percent to noncompensable (zero percent) was improper, and restoration of the 10 percent disability rating from May 21, 2018 is warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.