Citation Nr: 21010704 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-11 755 DATE: February 25, 2021 ORDER The reduction of the rating for the Veteran’s sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability from 30 percent to a 10 percent evaluation was improper, and the 30 percent disability rating is restored, effective July 6, 2005. FINDINGS OF FACT 1. At the time of the September 2018 rating decision, the 30 percent evaluation for sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve had been in effect for longer than five years. 2. Sustained improvement of the Veteran’s service-connected sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve has not been demonstrated. CONCLUSION OF LAW The September 2018 RO rating decision which reduced the Veteran’s rating for his service-connected sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve from 30 percent to 10 percent was not proper and the criteria for restoration of the 30 percent rating are met. 38 C.F.R. §§ 3.105(e), 3.344 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1960 to June 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of that hearing transcript is of record. Laws and Regulations VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating prosing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e) (2020). The beneficiary must be notified of the contemplated action at his or her latest address of record and furnished detailed reasons. Id. The beneficiary must be given 60 days for the presentation of additional evidence. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Proposed Reduction A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See Greyzck v. West, 12 Vet. App. 288, 292 (1999) and cases cited therein. Procedurally, where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105 (e). Initially, the Board finds that the RO complied with the procedural requirements for reductions. 38 C.F.R. § 3.105 (e) (2020). In June 2017, the RO proposed to reduce the Veteran’s evaluation for sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve from 30 percent to 10 percent. After the proposed reduction, the Veteran was given at least 60 days to present additional evidence, and was notified at his address of record. Thereafter, in the September 2018 rating decision, the RO reduced the 30 percent evaluation for the Veteran’s sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve to 10 percent, effective December 1, 2018. Also, in accordance with 38 C.F.R. § 3.105 (e), the reduction was made effective from December 1, 2018, well beyond the last day of the month from the 60-day period from the date of the June 2017 notice of the proposed reduction. In sum, the reduction for the Veteran’s sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability from 30 percent to 10 percent was effectuated in a manner that satisfies the procedural requirements under 38 C.F.R. § 3.105 (e). Thus, the Board finds that the provisions of 38 C.F.R. § 3.105 (e) are applicable and were met; therefore, the reduction was procedurally proper. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. Regarding rating reductions, 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) 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); 3.343(a). 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 v. Brown, 5 Vet. App. 413, 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show that 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). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). At the time of the September 2018 reduction, the Veteran had been in receipt of 30 percent rating for sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve from July 6, 2005, which is more than five years. Therefore, as noted above, when a rating has been in place for at least five years, 38 C.F.R. § 3.344 (a) and (b) are applicable. 38 C.F.R. § 3.344 (a) and (b) stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. Furthermore, there must be an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. At the time of the September 2018 reduction, the Veteran’s sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability was rated at a 30 percent disability evaluation under Diagnostic Code 8205. 38 C.F.R. §§ 4.20, 4.27 (2020). Under Diagnostic Code 8205, a 10 percent rating is warranted for moderate incomplete paralysis of the nerve; a 30 percent rating is warranted for severe incomplete paralysis of the nerve; and a 50 percent rating is warranted for complete paralysis of the nerve. The rating is dependent on relative degree of sensory manifestation or motor loss. See 38 C.F.R. § 4.124a, Diagnostic Code 8205. Based on a review of the record, the Board finds that the Veteran’s 30 percent disability rating for his sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability shall not be reduced. The Board notes again that the September 2018 rating decision reduced the Veteran’s sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability, to a 10 percent disability rating. However, the Board notes that the rating decision did not address the provisions of 38 C.F.R. § 3.344 even though earlier in the decision it was acknowledged that those provisions applied. There was no discussion of whether the April 2017 VA examination showed or found that the Veteran’s sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability sustained material improvement. Moreover, the RO failed to address whether all the evidence used in the determination of the reduction, demonstrated an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Based on the above, the Board finds that the reduction in rating from 30 percent to a 10 percent rating, effective December 1, 2018, was improper as the provisions of 38 C.F.R. § 3.344 were not considered. The decision to reduce the benefit was not in accordance with the law, in part, because the RO failed to make a finding that the April 2017 VA examination used as a basis for the reduction made findings that it was reasonably certain that any material improvement found would be maintained under the ordinary conditions of life and work. As such, the 30 percent rating for the Veteran’s sensory paralysis, terminal branch, mandibular division of the 5th cranial nerve disability is restored effective December 1, 2018. 38 C.F.R. § 3.344 (a), (b); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown, 5 Vet. App. at 413 (1993). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.