Citation Nr: 21006816 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-37 346 DATE: February 5, 2021 ORDER The reduction in the rating for Crohn’s disease, from 60 percent, was not proper and restoration of the rating of 60 percent is granted. A rating in excess of 60 percent is denied. FINDINGS OF FACT 1. The competent and probative evidence fails to show that the Veteran’s Crohn’s disease manifested a sustained improvement. 2. The Veteran’s Crohn’s disease does not manifest with pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. CONCLUSIONS OF LAW 1. The reduction in the rating for Crohn’s disease, from 60 percent, was not proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.344, 4.114, Diagnostic Code (DC) 7323. 2. The criteria for a rating in excess of 60 percent for Crohn’s disease are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.114, DC 7323. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision. The Veteran testified at a Board hearing in November 2018. In November 2019, the Board remanded the Veteran’s appeal back to the Agency of Original Jurisdiction (AOJ) for additional development. At issue: Whether the reduction in the rating for Crohn’s disease, from 60 percent, was proper. The Veteran is appealing the RO’s decision to reduce the disability rating for his service-connected Crohn’s disease from 60 to 30 percent, effective July 1, 2015. 04/10/2015, Rating Decision; 06/10/2015, NOD. 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 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, 4.13). VA regulations provide for specific notice requirements in instances where a reduction in disability rating is considered. 38 C.F.R. § 3.105(e). When a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. 38 C.F.R. § 3.105(e). This proposed rating should set forth all of the material facts and reasons for the proposed reduction. Id. The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. Id.   Here, the RO issued a rating reduction proposal in February 2015, which set forth the material facts and reasons for the proposed reduction. The Veteran was given more than 60 days to respond and present additional evidence. In April 2015, the RO issued a rating decision effectuating the reduction. Thus, the notice requirements for the rating reduction were satisfied. See 38 C.F.R. § 3.105(e). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. See Brown, 5 Vet. App. at 421 (stating that in a reduction case the issue is whether the RO was justified in reducing the veteran’s 30 percent rating, rather than whether the veteran was entitled to “reinstatement” of the 30 percent rating, and the Board was required to establish, by a preponderance of evidence and in compliance with 38 C.F.R. § 3.344(a), that a rating reduction was warranted). The Veteran’s Crohn’s disease has been rated under Diagnostic Code (DC) 7323, as analogous to ulcerative colitis. 38 C.F.R. § 4.114. Under DC 7323, a rating of 10 percent is warranted for moderate symptoms, with infrequent exacerbations. A rating of 30 percent is warranted for moderately severe symptoms, with frequent exacerbations. A rating of 60 percent is warranted for severe symptoms, with numerous attacks a year and malnutrition, and the health only fair during remissions. Finally, a maximum rating of 100 percent is warranted for pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. Id. *** At the outset, the Board notes that the Veteran underwent surgery for his Crohn’s disease in January 2006. Shortly after this surgery, a January 2006 rating decision granted a temporary rating of 100 percent, based on surgical treatment, effective January 3, 2006, and a rating of 30 percent, effective March 1, 2006. The Veteran appealed the rating of 30 percent. Thereafter, a September 2006 rating decision granted a higher rating of 60 percent, effective April 1, 2006. As noted above, the decision on appeal reduced the rating from 60 to 30 percent, effective July 1, 2015. VA examinations following the January 2006 surgery indicate that the Veteran experienced constant or near constant abdominal pain, described as moderate to severe, with significant occupational effects, described as problems with lifting and carrying, difficulty reaching, decreased mobility, lack of stamina, weakness or fatigue, and pain, resulting in increased absenteeism from work. Regarding the latter, in July 2007, the Veteran reported having lost eight weeks from work during the last 12 months. The evidence also shows occasional diarrhea and vomiting. See VA examinations from 05/26/2006, 12/07/2006, 07/16/2007, and 12/30/2008. A review of the record shows that, in August 2012, the Veteran submitted a claim of entitlement to a total disability rating based on individual unemployability (TDIU). In that context, he underwent a VA examination in November 2012. The November 2012 VA examination shows a diagnosis of Crohn’s disease, post ileocolic resection. The Veteran reported persistent abdominal pain since the January 2006 surgery. It was noted that, in May 2012, a colonoscopy revealed some erythematous ileal mucosa, consistent with active disease in distal ileum. The Veteran underwent medication treatment in the following months, and, in an August 2012 follow-up, it was noted that the abdominal pain was proving resistant to many therapies. Finally, the examiner noted that an upper GI with small bowel follow-through, in November 2012, showed no signs of recurrent disease. Regarding current symptoms, the Veteran reported constant generalized abdominal pain, worsened with any physical activity, including walking, standing, sitting, bending, climbing stairs, and lifting, with no specific alleviating factors identified. He also reported three bowel movement per day usually, sometimes up to five; soft, dark green stool, with occasional blood on the toilet tissue; occasional days of constipation; vomiting every other day; normal appetite; and weight gain of 10 pounds in the last six months. Functional impairment was described as lifting limited to 10 pounds frequently, 20 pounds occasionally, and 40 pounds maximum. The examiner opined that the Veteran’s complaints of abdominal pain were likely related to the Veteran’s history of Crohn’s disease and ileocolic resection. Nevertheless, the examiner described the Veteran’s Crohn’s disease as well-controlled with medical management, with no residual impairment from surgery. Also in 2012, the Veteran submitted a statements from his supervisor, spouse, and mother-in-law. The statement from the manager indicates that, during the past two years, the Veteran had exhibited a diminished ability to perform his job, to include difficulty lifting and twisting at his mid-core, limitations due to pain, lack of stamina. It was noted that the Veteran occasionally had to take part of the day off and had missed days due to his illness. The statements from the Veteran’s spouse and mother-in-law indicate that the Veteran is in constant pain, sometimes comes home early from work and ends up staying home because he can barely get out of bed. 08/14/2012, Buddy/Lay Statements. A November 2012 statement from a private treatment provider indicates that the Veteran continued to have abdominal pain, notably cramping and sharp pain. It was noted that eating did not affect his symptoms unless he was active immediate after eating, at which time he would become nauseated and vomit. He also had alternating constipation and non-bloody diarrhea, and occasionally noticed blood on the toilet paper. 11/26/2012, Medical Treatment Record - Non-Government Facility. A January 2015 VA examination report indicates that the Veteran had constant abdominal pain, with episodes of diarrhea and nausea, and of bowel disturbance with abdominal distress. Regarding functional impact, it was noted that he worked as a printer and needed to take breaks due to abdominal pain and diarrhea. A July 2016 VA examination indicates that the Veteran continued to have loose stools, that he had occasional abdominal distension, when having a flare of the colitis. It was noted that, after physical exertion, he develops distension, nausea, vomiting, and increased diarrhea, needing to bend over to work or activity. It was noted that the Veteran had frequent episodes of bowel disturbance with abdominal distress. Exacerbations were noted to occur once or twice per month and to last four to twenty-four hours. Regarding functional impact, it was noted that he had lost one to two weeks from work in the last 12 months, that lifting was restricted to 10 pounds, and that physical exertion caused pain and other symptoms to flare. More recently, a January 2020 VA examination indicates that the Veteran had missed about three months from work in the last year due to his disability. It was noted that he had an average of three to four loose bowel movements during the day and one to two loose stools during the night. He reported increased abdominal pain, described as twisting and pulling across the lower abdomen, at least twice a week, lasting for several hours. Regarding functional impact, it was noted that the Veteran had to leave his post at his job site two to three times a day to use restroom for his urgent bowel movements. *** As mentioned above, a rating reduction must be supported by a preponderance of the evidence. In other words, a preponderance of the evidence must show an improvement in the severity of the veteran’s disability, to include consideration of his ability to function under the ordinary conditions of life and work. Based on the evidence above, and resolving doubt in favor of the Veteran, the Board finds that the preponderance of the evidence does not demonstrate that the Veteran’s Crohn’s disease has manifested a sustained improvement. Rather, the evidence shows that the Veteran’s symptoms have been generally stable since his January 2006 surgery. Significantly, in this regard, the Board finds that symptomatology and functional impairment related to the Veteran’s Crohn’s disease have not changed significantly during the relevant time period. As the preponderance of the evidence fails to show a sustained improvement in the severity of the Veteran’s Crohn’s disease, the Board concludes that the rating reduction, from 60 to 30 percent, was inappropriate. Therefore, the rating of 60 percent for Crohn’s disease is reinstated, effective July 1, 2015. A rating in excess of 60 percent is not warranted. In support, the 2019 VA examination reflects no malnutrition, serious complications or other general health effects attributable to this gastrointestinal condition. Additionally, a March 2018 CT reflects that the Veteran’s liver, spleen, adrenal glands, kidneys, and pancreas were unremarkable. The 2016 VA examination report show not interference with absorption and nutrition and anemia was not noted.   In light these and other relevant evidence, the Board finds that a rating in excess of 60 percent is not warranted. 38 C.F.R. § 4.3. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López 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.