Citation Nr: 22007993 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 15-08 816 DATE: February 11, 2022 ORDER Restoration of a rating of 20 percent for right shoulder impingement syndrome with bursitis (dominant), status post labral tear, from the effective date of the reduction, is granted. FINDING OF FACT The reduction of the rating for right shoulder impingement syndrome with bursitis (dominant), status post labral tear from 20 percent to noncompensable, effective June 1, 2014, failed to comply with applicable law and regulations. CONCLUSION OF LAW Reduction of the rating for right shoulder impingement syndrome with bursitis (dominant), status post labral tear from 20 percent to noncompensable, effective June 1, 2014, was not proper. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.71a, Diagnostic Code 5201 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 2006 to November 2007, including service in Iraq, for which his decorations included the Combat Action Badge. This matter is on appeal from a March 2014 rating decision. In March 2018, the Veteran called VA and expressed an intention to withdraw his appeal. VA informed the Veteran that a withdrawal must be in writing. VA informed the Veteran of this requirement again by letters in August 2018, October 2018, and January 2019. Because the Veteran has never submitted his request to withdraw his appeal in writing, the Board will proceed to the merits of the appeal. In his March 2015 substantive appeal (VA Form 9), the Veteran requested a hearing. The Veteran was scheduled to testify at a hearing before the Board in June 2021. The Veteran did not appear for the hearing, did not request a postponement, and has never provided good cause for the failure to appear. The Board will therefore proceed to adjudicate his claim as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704(d)(2021). 1. Right Shoulder Impingement Syndrome with Bursitis (Dominant), Status Post Labral Tear In Brown v. Brown, 5 Vet. App. 413 (1993), the U. S. Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions, including those which have been in effect for less than five years. Id. at 417. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Id. at 420. Similarly, 38 C.F.R. § 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of a veteran's disability. Id. Furthermore, the rating agency should assure itself that there has been 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. §§ 3.344 (c), 4.2, 4.10 (2017). A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that the evidence weighs persuasively against the claim. Brown, 5 Vet. App. at 421. When VA reduces a veteran's disability rating without observing applicable laws and regulations, the rating is void ab initio and not in accordance with the law. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (citing Kitchens v. Brown, 7 Vet. App. 320, 325 (1995)). In reducing the Veteran's disability rating for right shoulder impingement syndrome with bursitis (dominant), status post labral tear from 20 percent to noncompensable, effective June 1, 2014, the Agency of Original Jurisdiction (AOJ) in its March 2014 rating decision cited the findings of a March 2013 rating decision, which in turn cited the results of a February 2013 VA shoulder and arm conditions examination. The decision listed the criteria for 10 percent and 20 percent ratings and found that the evidence warranted a noncompensable rating, but did not find that the evidence showed sustained improvement or that the record reflected any actual improvement in the Veteran's ability to function under ordinary conditions of life and work. The AOJ's March 2015 Statement of the Case (SOC) cited the same examination as well as a March 2015 VA shoulder and arm conditions examination and explained how the most recent examination met the criteria for a 10 percent rating, but again did not find that the evidence showed sustained improvement or that the record reflected any actual improvement in the Veteran's ability to function under ordinary conditions of life and work. (Continued on the next page) Because the AOJ failed to consider and apply the applicable laws and regulations in its reduction of the Veteran's disability rating for right shoulder impingement syndrome with bursitis (dominant), status post labral tear, the prior 20 percent rating must be restored, effective June 1, 2014. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.