Citation Nr: 21007787 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-58 104 DATE: February 10, 2021 ORDER As the reduction of the disability rating for scar with pain status post coccyx removal from 10 percent to noncompensable was improper, the 10 percent rating is restored effective February 4, 2016.   FINDING OF FACT The Veteran’s scar, status post coccyx removal, has remained painful. CONCLUSION OF LAW The reduction of the disability rating for scar with pain status post coccyx removal from 10 percent to noncompensable effective February 4, 2016, was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2009 to November 2013. The case is on appeal from a July 2016 rating decision, which reduced the evaluation of the disability from 10 percent to noncompensable. The Veteran appealed the reduction. An October 2016 statement of the case (SOC) phrased and adjudicated the issue as entitlement to an increased rating for the disability. At present, the issue of entitlement to an increased disability rating is not within the scope of the current appeal. See Green v. Nicholson, 21 Vet. App. 512 (2006) (citing Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992)). In February 2021, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Whether the reduction of the 10 percent rating for scar with pain status post coccyx removal to noncompensable was proper. A. Applicable Law Congress has provided that a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Moreover, a rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). A rating becomes entitled to heightened procedural protections under § 3.344(c) only when it has existed at the exact same percentage for at least 5 years. Simon v. Wilkie, 30 Vet. App. 403, 410 (2018). The applicability of § 3.344 is premised on how long a disability rating per VA’s rating schedule has been in place, as opposed to how long some baseline symptomatology has existed. Id. at 411. Section 3.344(a) applies when a rating exists for 5 years without changing its degree or position on the rating schedule. Id. These requirements do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Yet, without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Brown, 5 Vet. App. at 421. Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. “[T]he Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green, 21 Vet. App. at 512. B. Discussion As an initial matter, the RO did not follow the due process steps set forth in 38 C.F.R. § 3.105(e), for reducing the disability rating. The Veteran’s overall disability rating (for all service-connected disabilities) decreased from 60 percent to 50 percent effective on the date of the reduction. Hence, the RO was required to follow the steps in § 3.105(e). The RO did not do so. The RO implemented the reduction in the July 2016 rating decision on appeal without having first issued a rating decision proposing the reduction and informing the Veteran of his right to submit evidence and request a hearing. As such, the reduction was void ab initio on this basis. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Even were that not the case, the reduction was improper as the evidence does not indicate an actual improvement in the Veteran’s daily life. The 10 percent rating was initially granted under 38 C.F.R. § 4.118, DC 7804, which provides for a 10 percent rating with one or two scars that are unstable or painful. (The schedule for rating disabilities involving the skin was amended in August 2018; the applicable criteria here, for all material purposed, remained the unchanged.) According to a June 2014 VA examination, the scar was painful with sitting. This finding formed the basis of the RO’s initial grant of 10 percent. A February 2016 VA examination stated that the scar was not painful. This finding underpinned the RO’s reduction to noncompensable. Notwithstanding this finding, the Veteran testified at his February 2021 Board hearing that the scar remained painful. Overall, the Board finds that this evidence does not indicate an actual improvement in the disability under the ordinary conditions of daily life. Even if the February 2016 VA examiner did not find the scar painful upon examination, the Veteran’s competent and credible testimony at the Board hearing contradicts this finding. Hence, the VA examination alone does not support a reduction. Accordingly, the reduction was improper, and the 10 percent rating is restored. The Veteran and his representative stated at the hearing that restoration of the 10 percent rating would satisfy the appeal. Hence, the Board’s instant decision is a grant of the maximum benefit sought on appeal as to this issue. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.