Citation Nr: 22010598 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-11 159 DATE: February 24, 2022 ORDER Restoration of a 70 percent rating for service-connected traumatic brain injury (TBI), effective October 1, 2014, is granted. FINDINGS OF FACT 1. In a March 2014 rating decision, the Regional Office (RO) proposed to reduce the Veteran's rating for TBI from 70 percent to 10 percent; a July 2014 rating decision effectuated the reduction effective October 1, 2014. 2. At the time of the reduction, the Veteran's 70 percent rating had been in effect for more than five years. 3. The RO's decision to reduce the Veteran's rating was based solely on an inadequate VA examination. CONCLUSION OF LAW The rating reduction from 70 percent to 10 percent for service-connected TBI was improper, and the criteria for the restoration of the 70 percent rating, effective October 1, 2014, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1982 to April 1983, with subsequent service in the Army National Guard. This matter is before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in July 2014 by the Department of Veterans Affairs (VA) RO in Huntington, West Virginia. In his March 2016 substantive appeal, the Veteran requested a hearing before the Board. A hearing was scheduled for January 2019; however, his representative requested a postponement of the hearing that same month. Before a second hearing could be scheduled, in a November 2020 statement, the Veteran's representative withdrew the hearing request on his behalf and asked that the claim be decided on the evidence of record. 38 C.F.R. § 20.704(e). Rating Reduction The Veteran challenges the propriety of the reduction of his disability rating for service-connected TBI from 70 percent to 10 percent. By way of background, he has been in receipt of a 70 percent rating for TBI since April 7, 2009. The Veteran underwent a routine VA examination to evaluate the current severity of his TBI in March 2014. Thereafter, in a rating decision issued that same month, the RO proposed to reduce the Veteran's 70 percent rating to 10 percent. Subsequently, the reduction was effectuated in the July 2014 rating decision on appeal, effective October 1, 2014. Initially, the Board observes that 38 C.F.R. § 3.105(e) outlines a set of procedural safeguards governing rating reductions, which are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the instant case, the RO procedurally complied with 38 C.F.R. § 3.105(e) regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. Notice of the proposed rating reduction, including the evidentiary basis for this proposal, was provided to the Veteran in March 2014. This notice also informed the Veteran that he could submit additional evidence to show that the compensation payments should not be reduced and advised him of his right to request a pre-decisional personal hearing. As the RO has fulfilled the procedural requirements set forth under 38 C.F.R. § 3.105(e) for rating reductions, the Board will now consider the propriety of the rating reduction. At the time the rating reduction became effective, October 1, 2014, the Veteran's 70 percent rating for TBI had been continuously in effect for a period of over five years. As such, the Board finds that the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable here. Those provisions provide that, where a Veteran's schedular rating has been both continuous and stable for five years or more, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating that has been in effect for more than five years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The rating agency must also take into consideration whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life and work. 38 C.F.R. § 3.344(a)-(b); see also Brown, 5 Vet. App. at 420-21; Faust v. West, 13 Vet. App. 342, 350 (2000). 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 actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). Although the RO found in its proposed reduction that there was improvement in the Veteran's TBI, it did not make a finding of whether there was a sustained improvement or analyze whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Rather, the RO adjudicated the claim as if it was one for an increased disability rating. The Board finds that the March 2014 VA examination is inadequate. In that examination, the Veteran reported ongoing headaches and memory problems. The examiner concluded, however, that the Veteran was exaggerating his symptomology and that the headaches and memory problems were due to his chronic alcohol and drug abuse. However, the Board finds that the examiner failed to provide any reasoning to support this conclusion. Crucially, the examiner did not provide a discussion of whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Thus, the March 2014 VA examination is inadequate. Given these facts, the Board must find that the reduction is void ab initio in this case. See 38 C.F.R. § 3.344; Dofflemyer, 2 Vet. App. at 281-82. As the inadequate March 2014 VA examination formed the basis of the RO's determination that the Veteran's TBI had shown sustained improvement, and thus, warranted a rating reduction, the Board finds that the reduction was improper. See 38 C.F.R. § 3.344(a). The Board also finds that the record at the time of the reduction, including the Veteran's medical records and lay statements, did not contain any other competent evidence supporting a finding of objective improvement in the Veteran's TBI disability. Accordingly, the Board finds that the rating reduction for the Veteran's TBI from 70 percent to 10 percent was improper, and the prior rating must be restored effective October 1, 2014. Thus, the claim is granted. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.