Citation Nr: 21024454 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-29 358 DATE: April 22, 2021 ORDER The reduction of the ratings for tinea versicolor from 60 percent to 10 percent, effective April 1, 2015, and from 10 percent to noncompensable, effective October 1, 2016, was not proper; restoration of the 60 percent rating is granted. REMANDED Entitlement to service connection for chronic liver disease is remanded. FINDING OF FACT A January 2015 rating decision, which reduced the rating for tinea versicolor from 60 percent to 10 percent, effective April 1, 2015, did not comply with the required regulatory provisions and denied the Veteran due process. CONCLUSION OF LAW The reduction of the ratings for tinea versicolor from 60 percent to 10 percent, effective April 1, 2015, and from 10 percent to noncompensable, effective October 1, 2016, were not proper, and the 60 percent rating is restored, effective April 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from January 1971 to January 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal of January and June 2015 rating decisions. The Veteran was scheduled to testify at a Board hearing in May 2020, but the hearing was rescheduled to September 2020 due to the COVID-19 pandemic. However, the Veteran informed a representative at the Regional Office (RO) that he wanted his appeal decided based on the evidence of record. The Board finds his hearing request to be withdrawn. Rating Restoration for Tinea Versicolor With respect to the relevant laws and regulations regarding reduction pursuant to 38 C.F.R. § 3.105(e), the RO must issue a rating action proposing a reduction and setting forth all material facts and reasons for the reduction. A veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then, a rating action will be taken to effectuate the reduction. Where a rating reduction does not comply with the provisions of applicable VA regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, 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 a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000) Turning to the evidence, the RO proposed reducing the Veteran’s rating in an October 2014 rating decision; in January 2015, the RO reduced the 60 percent rating for the service-connected tinea versicolor disability to 10 percent, effective from April 1, 2015. Thereafter, a May 2016 Decision Review Officer (DRO) decision found clear and unmistakable error (CUE) in the January 2015 rating decision as it failed to apply the proper reduction for the tinea versicolor (it was proposed in the October 2014 rating decision that the 60 percent rating should be reduced to noncompensable). A July 2016 rating decision decreased the rating for tinea versicolor from 10 percent to noncompensable, effective October 1, 2016. The October 2014 reduction proposal was based on the results of an October 2014 VA examination. That proposal simply found that “VA medical evidence shows that your condition improved.” The January 2015 rating decision that implemented the reduction then stated that the Veteran met the criteria for a 10 percent rating, but that his tinea versicolor had resolved and was no longer present. Those two sentences represent the whole of the RO’s findings in this case. They fall woefully short of what is required to properly reduce a rating, even one that has been in effect for fewer than five years. Even the October 2014 VA examination on which the reduction was based was equivocal about the exact nature of the Veteran’s disability, whether there had been a previous misdiagnosis, or whether the Veteran’s disability had its onset in service. Quite simply, it was an error to reduce the Veteran based solely on this examination, especially so when absolutely none of the required findings were made. Because the reduction did not comply with the due process requirements applicable to all rating reduction cases, the rating reduction for tinea versicolor from 60 percent to 10 percent and subsequently from 10 percent to noncompensable, is void ab initio, and the 60 percent rating for tinea versicolor must be restored effective from April 1, 2015. REASONS FOR REMAND 1. Entitlement to service connection for chronic liver disease is remanded. The Veteran contends that his current liver condition, diagnosed as cirrhosis/hepatitis C, began in or is related to service. Specifically, he states that his chronic liver disease is due to inoculations he received in service with air guns. On remand, the Veteran should be afforded a VA examination in which a complete history is taken from the Veteran and an opinion is provided as to the etiology of a chronic liver disease. (Continued on next page) The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his chronic liver disease. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease, including inoculations he received in service with air guns. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.