Citation Nr: 21008631 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-25 170 DATE: February 17, 2021 ORDER The reduction to 10 percent being improper, restoration of a 40 percent rating for service-connected psoriatic arthritis is granted, effective January 1, 2015. FINDING OF FACT The preponderance of the evidence does not support a finding that the Veteran’s psoriatic arthritis has improved under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in the Veteran’s disability evaluation from 40 to 10 percent for psoriatic arthritis was improper and his benefits should be restored, effective January 1, 2015. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2009 to October 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which decreased the Veteran’s disability rating to 10 percent for his psoriatic arthritis. A Board hearing was held in August 2019. A transcript is of record. When a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of compensation payments, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, a Veteran must be given notice that he has: (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level; and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). Here, in a January 2013 rating decision, the AOJ granted service connection for psoriatic arthritis with an evaluation of 40 percent effective October 29, 2012. A June 2014 proposed rating and accompanying notification letter discussed material facts and reasons why VA proposed the reduction and notified the Veteran that he had 60 days to present additional evidence and 30 days to request a predetermination hearing. The Veteran did not request a predetermination hearing. Accordingly, the Board finds the requirements of 38 C.F.R. § 3.105 were met. Having decided that the procedural requirements as set forth in § 3.105 were met, the next question is whether, given the available evidence, the Veteran’s condition improved such that a reduction was warranted. The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), 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). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) 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. See 38 C.F.R. § 3.344(c). In the present case, the Veteran’s 40 percent rating for psoriatic arthritis had been in effect for less than five years before the October 2014 rating decision reduced it to 10 percent effective January 1, 2015. As a result, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply. Nevertheless, the Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the [Veteran’s] disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown, 5 Vet. App. at 421. Importantly, and critical to this case, the Court in Brown concluded that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Id. at 421. VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e. higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Medical and non-medical indicators of improvement may be considered. See Faust v. West, 13 Vet. App. 342, 349 (2000). Having reviewed the evidence of record, the Board finds that restoration of the 40 percent rating for the Veteran’s psoriatic arthritis, effective January 1, 2015, is warranted. The Veteran’s psoriatic arthritis is currently rated under Diagnostic Code 5002. See 38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.118, Diagnostic Code 7816, Note. Under Diagnostic Code 5002, an active process is to be rated 20 percent for one or two exacerbations a year in a well-established diagnosis; 40 percent for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; 60 percent for symptoms that are less than criteria for 100 percent rating, but with weight loss and anemia, that are productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; and a 100 percent rating for constitutional manifestations associated with active joint involvement that is totally incapacitating. 38 C.F.R. § 4.71a. Here, the Veteran was granted a 40 percent disability rating effective October 29, 2012. Indeed, his psoriatic arthritis was the reason for his medical evaluation board and discharge. See STRs. The Veteran’s psoriatic arthritis caused flare-ups in several joints that impaired his functional ability, to include getting in and out of bed or a vehicle, showering, walking two miles, and bending. Id. He contends that his condition has not improved in the 17 months between his rating decision assigning a 40 percent disability rating and the new VA examination. See December 2014 notice of disagreement. The Veteran maintains that his condition has not improved in the ordinary conditions of life and work due to the severity of his flares at any point within the appellate period. See generally, Board hearing Tr. 5-10. For the reasons that follow, the Board agrees. The Veteran was afforded a VA examination in May 2014. Relevantly, the examiner noted that the Veteran’s elbows and hands have impaired movement during flare-ups. See May 2014 VA examination report. Importantly, the examiner did not state that the Veteran’s disability had improved. Id. The Veteran explained that during flare-ups he can sometimes lose as much as 90 degrees of loss in range of motion. See June 2014 VA Form 21-4138. The flares can occur up to 40 times in any given year. See Board hearing Tr. at 6. In addition to impaired movement, the Veteran described the flares as increased pain, swelling, and stiffening. Id. at 6-8. Notably, the Veteran stated that the impairment caused by his flare-ups have not changed since its diagnosis in January 2012. Id.; see also STRs. Indeed, service treatment records from March 2012 show that the Veteran had difficulties with his range of motion, to include walking and bending, due to his psoriatic arthritis. See STRs. As described above, the Veteran’s flares cause impairment in his range of motion by up to 90 percent. Given the Veteran’s range of motion impairment caused by his psoriatic arthritis from 2012 to the present, the evidentiary record does not reflect an improvement in his ability to function under the ordinary conditions of life and work. Indeed, the Veteran now has trouble gripping and maintaining a hold on a coffee mug during flare-ups. See Board hearing Tr. at 5. The Board finds that the Veteran’s statements regarding his symptoms and impairment are credible and entitled to probative weight. Therefore, the Board finds that the Veteran’s ability to function under the ordinary conditions of life and work has not improved. The Veteran’s symptoms remained consistent between his January 2012 diagnosis and May 2014 VA examination. Further, the May 2014 examiner did not explain why or how the Veteran’s disability improved. The rating is restored based on the severity of the Veteran’s flare-ups. (Continued on the next page)   As noted above, in reduction cases, the burden of proof lies with VA to show that the Veteran’s disability has undergone an observable improvement. To be precise, the burden is on VA to establish by a preponderance of evidence that the rating reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). As highly probative evidence indicates the Veteran’s condition has not improved, the Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his psoriatic arthritis was therefore improper. The 40 percent rating for psoriatic arthritis is therefore restored, effective January 1, 2015. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.