Citation Nr: 21009310 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-08 680 DATE: February 22, 2021 ORDER The reduction to a 10 percent rating being improper, restoration of a 50 percent rating for service-connected degenerative arthritis and radial head fracture of the right elbow with limitation of extension, effective December 1, 2014, is granted. FINDING OF FACT The Veteran’s degenerative arthritis and radial head fracture of the right elbow with limitation of extension has not improved under the conditions of daily life. CONCLUSION OF LAW The reduction in the Veteran’s disability evaluation from 50 percent to 10 percent for degenerative arthritis and radial head fracture of the right elbow with limitation of extension was improper and the 50 percent rating is restored, effective December 1, 2014. 38 U.S.C. § §§ 1155, 5112; 38 C.F.R. § §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5207. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to March 1967. The Veteran appealed a September 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In November 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. A rating reduction is proper when the AOJ follows the procedural requirements outlined in 38 C.F.R. § 3.105 and the evidence shows improvement in the Veteran’s degenerative arthritis and radial head fracture of the right elbow with limitation of extension under the ordinary conditions of life and work. Under the provisions of 38 C.F.R. § 3.105, 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, a July 2014 rating decision and accompanying notification letter discussed material facts and reasons why the Department of Veterans Affairs (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 38 C.F.R. § 3.105 were met, the next question is whether, given the available evidence, the Veteran’s condition improved such that a reduction was warranted. Though material improvement in the physical condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The Court in Brown v. 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.” 5 Vet. App. 413, 421 (1993). Significantly, in a rating reduction case, 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 50 percent rating for the Veteran’s degenerative arthritis and radial head fracture of the right elbow with limitation of extension, effective December 1, 2014, is warranted. Under Diagnostic Code 5207, a 10 percent rating is warranted where extension of either elbow is limited to 45 degrees. A 20 percent rating is warranted where extension of either elbow is limited to 75 degrees, or extension of the minor elbow is limited to 90 degrees. A 30 percent rating is warranted where extension of the major elbow is limited to 90 degrees, or where extension of the minor elbow is limited to 100 degrees. A 40 percent rating is warranted where extension of the major elbow is limited to 100 degrees, or where extension of the minor elbow is limited to 110 degrees. A maximum 50 percent rating is warranted where extension of the major elbow is limited to 110 degrees. The Veteran is right hand dominant. See August 2019 VA examination report. The Veteran credibly stated that his right arm condition has not improved and depends on the day. See February 2016 VA Form 9. Specifically, the Veteran stated that his VA examination was conducted during a very warm day, which is good for his elbow, and that during colder weather he has more pain, limited range of motion (ROM), and an inability to move his arm. See October 2014 Veteran statement. The Veteran also stated that during the winter he does all his lifting with his left arm. See November 2015 Veteran statement. The Board notes the July 2014 rating decision proposed a reduction based on July 2014 VA examination. However, the Board finds the July 2014 VA examination was inadequate since it did not properly account for flare-ups. The July 2014 VA examiner noted flare-ups once a month that last up to a week, that they limit flexion and extension, and cause limitation in activities. However, the July 2014 VA examiner could not provide ROM measurements regarding flare-ups since the examination was not being conducted during one. Overall, not enough information was elicited to allow the Board to assess the limitation in ROM during flare-ups. Similarly, the January 2016 and September 2017 VA examinations were unable to provide ROM measurements during flare-ups and provided little to no details regarding flare-ups. The September 2017 VA examiner noted intermittent pain during elbow extension and a pain level of 7/10. The August 2019 VA examiner noted functional impact in being unable to push, pull, lift, carry, and impacts on driving. The Board finds that the Veteran’s ability to function under the ordinary conditions of life and work has not improved. The Veteran continued to have severe flare-ups, especially during colder months, and painful motion on extension which impacts functional abilities. Overall, the Veteran continued to experience degenerative arthritis and radial head fracture of the right elbow with limitation of extension symptoms that warranted a 50 percent rating. 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). The Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his degenerative arthritis and radial head fracture of the right elbow with limitation of extension was therefore improper. The maximum 50 percent rating for degenerative arthritis and radial head fracture of the right elbow with limitation of extension is therefore restored. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.