Citation Nr: 21007139 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-54 156 DATE: February 8, 2021 REMANDED Entitlement to a compensable rating for obstructive airway disease, to include the matter of propriety of a reduction in the rating for such disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1991 to April 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision, which reduced the rating for the Veteran’s obstructive airway disease from 10 percent to 0 percent effective January 1, 2019. In January 2021, a videoconference hearing was held before the undersigned; while a transcript of the hearing has not yet been associated with the claims file, one will be entered in the record in accordance with Board practices (when completed). Entitlement to a compensable rating for obstructive airway disease, to include the matter of the propriety of the reduction in the rating. A January 1995 rating decision granted service connection for difficulty breathing, rated 0 percent; a June 2013 rating decision increased the rating to 10 percent effective May 2011. In March 2018 it was proposed that the rating for obstructive airway disease be reduced to 0 percent. The October 2018 rating decision on appeal decreased the rating to 0 percent effective January 1, 2019. As noted above, the 10 percent rating for obstructive airway disease was in effect longer than five years), which requires consideration of procedural safeguards against reduction (including that a rating for a disease subject to episodic improvement will not be reduced on a single examination, except in those instances where all the evidence of record clearly warrants a conclusion that sustained improvement was demonstrated). When a Veteran’s disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The propriety of the reductions here is part and parcel of the matter of the ongoing claim for an increased rating for obstructive airway disease. As it is not evident from the record, that those procedural safeguards were considered, a remand to ensure that they have considered is necessary. At the January 2021 virtual hearing, the Veteran testified that his obstructive airway disease had worsened since he was last examined. A contemporaneous examination to assess the disability is necessary. He also testified that he was seen at an emergency room for respiratory complaints; records of such treatment are not in the claims file. Those records (and any other records of pertinent treatment during the evaluation period that are outstanding) may well contain information relating to the severity of the Veteran’s disability during the pendency of this appeal. Accordingly, they must be sought. Finally, at the hearing the Board representative noted that the rating criteria under the diagnostic code (6603) that the disability is rated provide for alternatively rating based on DLCO (SB) testing, and that such testing for not done on the examination the rating decision on appeal relied on. 38 C.F.R. § 4.96 provides that in such cases to rate the disability under alternate criteria as long as the examiner states that such would not be useful or valid, and here the examiner appears to have done so. However, the Veteran’s representative cited to a private provider’s report of DLCO testing (during the evaluation period) that showed a finding that would warrant a compensable rating (60 percent). Considering the contentions made, it appears that DLCO testing may be called for (and the significance to the private DLCO testing cited should be addressed). The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers (VA and private) of evaluations and treatment he has received for breathing problems (obstructive airway disease) since the filing of the instant claim, records of which are not already in his claims file, and to submit authorizations for VA to obtain complete pertinent clinical records from all private providers identified. Secure all such records from all providers identified (specifically including any records of VA evaluations or treatment that are not already in the claims file). 2. Arrange for the Veteran to be examined by an appropriate clinician to assess the current severity of his service-connected obstructive airway disease. The Veteran’s record must be reviewed by the examiner, and all necessary studies must be completed. Considering the contentions made, the testing should include by DLCO (SB), unless the examiner specifically explains in detail why such testing would not be useful or valid. The examiner is also asked to discuss the significance of the (February 6, 2016) DLCO testing finding of 60 percent of predicted. All opinions must include rationale that cites to supporting clinical data and medical principles. 3. Before readjudicating the claim, considering the updated (contemporaneous) evidence added, review the record, considering the observations above (and all evidence added to the claims file bearing on the matter), and address the propriety of the reduction in the rating for the obstructive airway disease by the October 2018 rating decision (whether in compliance with governing, including due process, regulatory criteria). If the reduction is found to have been proper (in accordance with mandated due process protections and regulatory provisions pertaining to reductions of ratings, and supported by the factual record, sustained improvement was shown), include a full explanation of the rationale for such conclusion (with citation to supporting regulations, caselaw, and clinical data) in the supplemental statement of the case that is issued. After the propriety of the reduction is fully addressed, readjudicate the claim for increase considering the expanded, updated, record. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.