Citation Nr: 21022275 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-41 716 DATE: April 15, 2021 ORDER As the increase in rating for the service-connected chronic obstructive pulmonary disease (COPD) with sleep problems from 60 percent to 100 percent, effective from October 1, 2014, in the November 2013 rating decision was clear and unmistakable error, restoration of the 100 percent rating is denied. Restoration of the 60 percent rating for COPD with sleep problems, effective from October 1, 2014, is granted. REMANDED A rating greater than 60 percent for COPD with sleep problems is remanded. FINDINGS OF FACT 1. At the time of the November 2013 rating decision, which increased the rating for the service-connected COPD with sleep problems from 60 percent to 100 percent, the Forced Expiratory Volume in One Second (FEV-1) was 78 percent of predicted value, which warranted a 10 percent rating under Diagnostic Code 6604, and the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) was 56 percent of predicted value, which warranted a 30 percent rating under Diagnostic Code 6604. 2. The July 2014 rating decision and September 2015 statement of the case show that the Agency of Original Jurisdiction (AOJ) failed to consider the provisions of 38 C.F.R. § 3.344 (the primary regulation governing rating reductions) in the reduction of the evaluation for the service-connected COPD with sleep problems from 60 percent to 10 percent, effective from October 1, 2014. CONCLUSIONS OF LAW 1. There is clear and unmistakable error in the November 2013 rating decision which increased the rating for the service-connected COPD with sleep problems from 60 percent to 100 percent, effective from October 1, 2014. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105(a). 2. The criteria for restoration of a 100 percent rating for the service-connected COPD with sleep problems have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Code 6604. 3. The criteria for restoration of a 60 percent rating for the service-connected COPD with sleep problems, effective from October 1, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a November 2019 decision, the Board denied the Veteran’s claim for restoration of a 100 percent rating for the service-connected COPD with sleep problems and denied service connection for a sleep disorder. He appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in a November 2020 Order, the Court remanded that part of that Board decision that denied the restoration for readjudication in accordance with the joint motion. The appeal of the claim for service connection for a sleep disorder was dismissed. Restoration of a 100 percent rating for the service-connected COPD with sleep problems With respect to rating reductions, general regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In cases where a rating has been in effect for five 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 (1995). A rating that has been in effect for five 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 five-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 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The above requirements do not apply to ratings that have not continued for long periods of five years or more at the same level or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in those disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Previous determinations which are final and binding, including decisions on degree of disability, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Generally, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply. 38 C.F.R. § 3.105(a). In cases involving clear and unmistakable error, rather than showing improvement, to reduce a disability rating the evidence must show that the disability did not meet the criteria for the rating sought to be reduced. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the adjudicator, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). The criteria to determine whether clear and unmistakable error was present in a prior determination are that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992). From a procedural standpoint in the current appeal, the Veteran’s COPD was appropriately reduced. A rating decision proposing the reduction in evaluation was issued in March 2014. 38 C.F.R. § 3.105(e). The rationale for the proposed reduction was set forth in that rating decision. Then, a rating decision reducing the evaluation of the disability was issued in July 2014. Thus, the Veteran received proper notice, and the procedural requirements of 38 C.F.R. § 3.105(e) were met. The 60 percent rating had been assigned by the AOJ in a July 2010 rating decision and was effective from May 13, 2010. Thus, the rating had been in effect for less than five years, and the provisions of 38 C.F.R. § 3.344(c) apply. The 60 percent rating had been assigned based on a July 2010 VA examination which revealed complaints of dyspnea on moderate exertion and a pulmonary function test finding of Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 50 percent. A November 2013 rating decision increased the rating for the service-connected COPD with sleep problems from 60 percent to 100 percent, effective from January 10, 2013. The basis of the award was a finding of Forced Expiratory Volume in One Second (FEV-1) of 2 percent of predicted value, as reported by an examiner in an October 2013 VA examination report. That finding warranted a 100 percent rating under Diagnostic Code 6604. 38 C.F.R. § 4.97 (2013). In the July 2014 rating decision, the AOJ found clear and unmistakable error in the assignment of the 100 percent rating as the objective medical evidence showed a 10 percent rating was warranted. The AOJ stated that an incorrect pulmonary function test finding was used. The AOJ noted that in the October 2013 VA examination report, the examiner stated that the FEV-1 was less than 40 percent of predicted value at 2.4 percent. The AOJ observed that the FEV-1 was in fact 78 percent of predicted value, which warrants a 10 percent rating. Given the above, the November 2013 rating decision increased the rating for the Veteran’s COPD to 100 percent based on an incorrect FEV-1 finding. While the VA examiner reported an FEV-1 of 2 percent of predicted value, the October 2013 pulmonary function test the examiner was citing clearly showed an FEV-1 of 78 percent of predicted value. This correct FEV-1 finding of 78 percent of predicted value only warrants a 10 percent rating under Diagnostic Code 6604. VA medical records confirm this finding. In an October 31, 2013 letter, the VA Medical Center notified the Veteran that his FEV-1 was greater than 70 percent, indicating mild COPD. While not reported by the AOJ, the October 2013 pulmonary function test also showed an FEV-1/FVC of 56 percent of predicted value, which warrants a 30 percent rating under Diagnostic Code 6604. Regardless, the disability still did not meet the criteria for a 100 percent rating. Thus, the Board finds that, at the time of the November 2013 rating decision which increased the rating for the service-connected COPD with sleep problems from 60 percent to 100 percent, the FEV-1 was 78 percent of predicted value, which warranted a 10 percent rating, and the FEV-1/FVC was 56 percent of predicted value, which warranted a 30 percent rating. The criteria for a 100 percent rating were simply not met. Therefore, there was clear and unmistakable error in the November 2013 rating decision which increased the rating for the service-connected COPD with sleep problems from 60 percent to 100 percent. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). Accordingly, restoration of the 100 percent rating is not warranted. Having determined that the assignment of the 100 percent rating was clearly and unmistakably erroneous and restoration of such is not warranted, the remaining question is whether the reduction in evaluation from the previously assigned 60 percent to 10 percent is proper. In this regard, and, as discussed above, at the time of the July 2014 rating decision which reduced the rating for the service-connected COPD to 10 percent, the October 2013 pulmonary function test also showed an FEV-1/FVC of 56 percent of predicted value, which warranted a 30 percent rating. Thus, the objective evidence of record did not fully support the reduction to 10 percent. Moreover, a review of the July 2014 rating decision and September 2015 statement of the case reveals that the AOJ failed to consider the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions. The AOJ focused on the error in assigning the 100 percent rating and how the FEV-1 finding supported only a 10 percent rating. However, the AOJ did not address whether an improvement in the disability actually occurred or that such improvement reflected an improvement in the Veteran’ ability to function under the ordinary conditions of life and work. At the July 2010 examination that led to the assignment of the 60 percent rating, the Veteran reported dyspnea on moderate exertion. At a February 2011 examination, he reported dyspnea on mild exertion. At the October 2013 examination during the current appeal, he reported increasing dyspnea on exertion since the last examination. These statements do not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Rather, they reflect a steady decline in his pulmonary function, as evidenced by dyspnea at lower levels of exertion. When the AOJ reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). Where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. Schafrath, 1 Vet. App. 589. Thus, the appropriate remedy in this case is a restoration of the 60 percent rating, effective on the date of the reduction—October 1, 2014. The July 2014 reduction in evaluation is void ab initio, and the higher rating of 60 percent must be restored. Accordingly, restoration of the 60 percent rating for the service-connected COPD with sleep problems, effective October 1, 2014, is warranted. REASONS FOR REMAND Rating greater than 60 percent for COPD with sleep problems In a March 2017 rating decision, the AOJ increased the then 10 percent rating for the service-connected COPD with sleep problems to 30 percent, effective from November 30, 2015. The claim for an increased rating was readjudicated in March 2017 and June 2017 supplemental statements of the case. In the remand portion of the November 2019 decision, the Board requested that the AOJ consider evidence added to the record after certification of the appeal to the Board. While the AOJ considered the evidence in a September 2020 supplemental statement of the case, the issue at that time was entitlement to a rating in excess of 10 percent prior to November 30, 3015 and in excess of 30 percent thereafter for the service-connected COPD with sleep problems. Given the above grant of the restoration of the 60 percent rating, effective from October 1, 2014, the increased rating issue on appeal has become entitlement to a rating greater than 60 percent for COPD with sleep problems. While the Board regrets the further delay, due process requires that the AOJ readjudicate the increased rating claim as currently characterized prior to the Board’s adjudication of the appeal. Accordingly, this matter is REMANDED for the following action: Readjudicate the issue of entitlement to a rating greater than 60 percent for the service-connected COPD with sleep problems. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.