Citation Nr: 22017207 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-60 410 DATE: March 24, 2022 ORDER Reduction of the disability rating for the service-connected asthma from 30 percent to 10 percent effective June 3, 2015, was improper; restoration of a 30 percent rating is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to the service-connected lumbar spine degenerative disease, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected lumbar spine disability, is remanded. Entitlement to an initial increased disability rating for the service-connected hypertension, evaluated as noncompensably disabling prior to September 26, 2017 and as 10 percent disabling from September 26, 2017, is remanded. Entitlement to a rating in excess of 10 percent for the service-connected lumbar degenerative disc disease is remanded. Entitlement to a rating in excess of 30 percent for the service-connected asthma is remanded. FINDINGS OF FACT 1. At the time of the June 2015 reduction of the schedular rating for the Veteran's asthma, the disability rating of 30 percent had been in effect for a period of less than five years. 2. The Regional Office (RO) failed to comply with the due process requirements in implementing the June 2015 reduction of the schedular rating for the Veteran's asthma. CONCLUSION OF LAW The reduction of the rating for asthma from 30 percent to 10 percent effective June 3, 2015, was improper and is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1979 to May 1984, from June 2007 to May 2008, and from October 2008 to October 2010. In October 2021, he testified at a hearing before the undersigned Veterans Law Judge. Propriety of Rating Restoration from 30 Percent to 10 Percent from June 3, 2015 for Service-Connected Asthma There are specific notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the Veteran in a reduction case are set forth under 38 C.F.R. § 3.105(e) and must be followed by VA before issuing a final rating reduction. Brown v. Brown, 5 Vet. App. 413, 418 (1993). These specific notice requirements take precedence over the more general notice requirements found in the VCAA. Zimick v. West, 11 Vet. App. 45, 51 (1998). The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344. Section 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c). In the present case, at the time of the reduction, the Veteran's 30 percent rating for his asthma had been assigned in a September 2013 rating decision, and made effective November 21, 2011, the date VA received his claim for service connection for asthma. Thus, at the time of the June 2015 reduction of the schedular rating for the Veteran's asthma, the disability rating of 30 percent had been in effect for a period of less than five years. Because the 30 percent rating was not in effect for a period exceeding five years, the provisions of 38 C.F.R. § 3.344(a) regarding stabilization of disability ratings do not apply, and a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). The circumstances under which a disability rating may be reduced are limited and carefully circumscribed by regulations promulgated by VA. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Where VA has reduced a veteran's rating without observing applicable laws and regulations, such a rating is void ab initio, and it will be set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In this case, the June 2015 rating decision which reduced the Veteran's asthma rating stated that the reduction did not result in a reduction in the overall benefits he would receive, and, thus, he was only being provided with contemporaneous notification of the reduction decision. However, the reduction in the Veteran's asthma rating from 30 percent to 10 percent, effective June 3, 2015, did, in fact, result in a reduction in the overall benefits he would receive. Such is clearly shown in the concurrent rating decision codesheet, which notes that the Veteran's combined evaluation for compensation was decreased from 80 percent to 70 percent on June 3, 2015. No other rating changes were made effective June 3, 2015. Thus, it was the reduction in the Veteran's asthma rating from 30 percent to 10 percent which caused the reduction in his overall benefits, effective June 3, 2015. As such, the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) governing rating reductions applied, but were not followed, as the Veteran only received contemporaneous notice of the reduction. He was never notified prior to the June 2015 rating decision that the reduction was proposed, thereby disallowing him a chance to present additional evidence to show that compensation payments should be continued at their then-present level. In light of the above, the RO failed to meet the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 30 percent to 10 percent for the Veteran's asthma. Therefore, the reduction was improper and is void ab initio, and the Veteran's 30 percent disability rating for the service-connected asthma is restored. REASONS FOR REMAND Service connection for bilateral knee disabilities, to include as secondary to the service-connected lumbar spine degenerative disc disease The Veteran seeks service connection for bilateral knee disabilities. He testified before the Board of Veterans' Appeals (Board) in October 2021 that he has suffered symptoms of bilateral knee pain since serving in Iraq in 2008, when he fell from a ladder. He further testified that he had been diagnosed with gout in his knees. His VA treatment records, however, do not show such a diagnosis having been rendered during the periods on appeal (from November 2011 to the present for the right knee and from September 2014 to the present for the left knee). Rather, they show that he had a past medical history significant for possible gout. No other diagnoses for his knees are of record, other than notations of him experiencing bilateral knee arthralgia. He has not been afforded a proper VA examination to determine the nature and etiology of his bilateral knee complaints during the periods on appeal, as he was last given a physical VA examination for his knees prior to his current claim for service connection for the left knee. A full bilateral knees examination is needed to determine the nature and etiology of his bilateral knee disabilities before the Board can decide these claims. In addition, the Veteran testified before the Board that his service-connected lumbar spine disability causes him to walk with an altered gait. Thus, the VA knees examiner should also address whether any knee disability is secondary to his lumbar spine disability. Entitlement to an initial increased disability rating for service-connected hypertension, evaluated as noncompensably disabling prior to September 26, 2017 and as 10 percent disabling from September 26, 2017 Entitlement to a rating in excess of 10 percent for service-connected lumbar degenerative disc disease Entitlement to a rating in excess of 30 percent for service-connected asthma The Veteran testified before the Board in October 2021 that his service-connected hypertension, lumbar degenerative disc disease, and asthma have increased in severity over the prior few years and are more severe than as were shown on the most recent VA examinations, which occurred in September 2017. As such, he should be afforded new VA examinations to determine the current severity of his service-connected hypertension, lumbar degenerative disc disease, and asthma before the Board can decide these claims. In addition, on remand, updated VA treatment records should be obtained as the Veteran testified that he has continued to treat with VA for these disabilities. Accordingly, the matters are REMANDED for the following action: 1. Obtain VA treatment records since May 2016. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current or previously-diagnosed disability manifested by right and/or left knee pain. The examiner should review the entire claims file, including the Veteran's October 2021 Board hearing testimony, conduct all necessary tests and studies, and provide the following requested opinions: (a.) Does the Veteran have a diagnosable disability in either knee manifested by chronic pain on current examination or at any time during the pendency of the appeal (from November 2011 to the present for the right knee and from September 2014 to the present for the left knee)? (b.) If the Veteran does not have a diagnosed disability manifested by chronic pain in his right and/or left knee on current examination or at any time during the current appeal, is his chronic right and/or left knee pain characterized by pain that reaches the level of functional impairment of earning capacity? (c.) If the Veteran has either a diagnosed disability manifested by chronic pain or chronic pain that reaches the level of functional impairment of earning capacity is his right and/or left knee, the examiner should also answer the following: i. Is it at least as likely as not (i.e., 50 percent probability or greater) that such disability is related to any incident of active service, to include his report of being injured after falling from a ladder in service? ii. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such disability was caused by his service-connected lumbar spine disability, to include as a result of an altered gait due to his lumbar spine disability? iii. Is it at least as likely as not (i.e., 50 percent probability or greater) that any such disability was aggravated (i.e., made worse) by his service-connected lumbar spine disability, to include as a result of an altered gait due to his lumbar spine disability? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Also after completion of the directive set forth in paragraph 1 of this remand, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected hypertension. His claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran's hypertension and report all signs and symptoms associated with this disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the hypertension alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Also after completion of the directive set forth in paragraph 1 of this remand, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected lumbar spine disability. His claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran's lumbar spine disability and report all signs and symptoms associated with this disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Also after completion of the directive set forth in paragraph 1 of this remand, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected asthma. His claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran's asthma and report all signs and symptoms associated with this disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the asthma alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.