Citation Nr: 21039856 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-45 118 DATE: July 1, 2021 ORDER As the reduction in the disability rating from 70 percent to 10 percent for the Veteran's service-connected traumatic brain injury (TBI) was not proper, restoration of the 70 percent disability rating is granted. FINDING OF FACT The decision to reduce the Veteran's service-connected TBI from 70 percent to 10 percent, effective November 1, 2014, was not proper, as the Agency of Original Jurisdiction (AOJ) failed to properly consider entire recorded history of the condition and consider whether the evidence demonstrated material improvement reasonably certain to continue under the ordinary conditions of life. CONCLUSION OF LAW As the AOJ's reduction of the disability rating for the Veteran's service-connected TBI from 70 percent to 10 percent, effective November 1, 2014, was not in accordance with law, the criteria for restoration of the 70 percent rating have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.105(e), 3.159, 4.124a, Diagnostic Code (DC) 8045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2007 to May 2012. 1. Restoration of the 70 percent rating for service-connected TBI A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. 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, 420 (1993). 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 the veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Additionally, 38 C.F.R. § 3.344 governs reductions for ratings in effect for five years or more. In this case, however, the rating had not been in effect for five years or more, and 38 C.F.R. § 3.344 does not apply. Upon review of the evidence, the Board finds that the reduction in the rating from 70 percent to 10 percent for the Veteran's service-connected TBI under DC 8045 was not proper, and restoration of the 70 percent rating is therefore warranted. To that end, the Board recognizes that, in implementing the proposed rating reduction, the AOJ weighed the evidence of record and found that the Veteran's TBI no longer met the criteria for a 70 percent rating under DC 8045. However, review of the November 2013 and August 2014 rating decisions, as well as the August 2016 statement of the case (SOC) and December 2018 supplemental SOC (SSOC) reflect that the AOJ failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life, despite contending his condition improved due to additional VA examinations. See 38 C.F.R. §§ 4.10, 4.13. The AOJ's failure to make such a determination in this case renders the reduction improper. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In fact, the Court has consistently held that when VA reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. See Dofflemyer, 2 Vet. App. 277, 281-82 (1992). In this case, as noted in the August 2016 SOC and December 2018 SSOC, the AOJ considered the March 2013, June 2014, August 2016, and July 2018 VA examinations when substantiating and confirming the proposed reduction. Additionally, the AOJ considered Veteran and lay statements indicating the Veteran's symptomology has not improved. See December 2018 SSOC; December 2013 Lay Statement. The AOJ, however, appears to have discounted these statements noting that the symptoms of TBI and the Veteran's service-connected posttraumatic stress disorder (PTSD) overlap. The claims file contains some conflicting evidence regarding whether the symptomology between TBI and PTSD can be differentiated. A May 2011 VA examiner noted that differentiating such symptomology "is impossible" without undue speculation. In contrast, a March 2013 VA examiner indicated they could be differentiated by noting the Veteran's TBI symptoms were "self-reported," and an August 2016 VA examiner differentiated the symptoms indicating headaches, reduced cognition, reduced equilibrium, reduced focus, distraction, and reduced precision are symptoms of TBI. Additionally, in a December 2013 letter, the Veteran's treating VA physician indicated that the Veteran's symptoms from both PTSD and an in-service head injury had worsened since discharge, and "have not improved so that he is able to carry on with a normal life at home and in the community." Regardless, the AOJ failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life. See 38 C.F.R. §§ 4.10, 4.13. In light of this evidence of record, the Board finds that the AOJ failed to base the reduction decision on a proper review of the entire recorded history of the condition and adequately determine whether any improvement in the Veteran's condition actually reflects improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993). Such an omission is error and not in accordance with the law. Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324. Accordingly, the 70 percent rating assigned for TBI under DC 8045 is restored. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.