Citation Nr: 23020422 Decision Date: 04/04/23 Archive Date: 04/04/23 DOCKET NO. 19-07 777 DATE: April 4, 2023 ORDER The reduction of the rating for Crohn's disease from 60 percent to 30 percent, effective August 1, 2018, was improper, and the 60 percent rating is restored; the appeal is granted. FINDINGS OF FACT 1. The Veteran served on active duty from March 2003 to March 2009. 2. In March 2017, the agency of original jurisdiction (AOJ) proposed to reduce the rating for Crohn's disease from 60 percent to 0 percent. 3. A May 2018 rating decision reduced the rating for Crohn's disease to 30 percent, effective August 1, 2018. 4. The reduction in the rating for Crohn's disease from 60 percent to 30 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the rating for Crohn's disease from 60 percent to 30 percent was improper; the criteria for restoration of the 60 percent rating have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.114, Diagnostic Code (DC) 7323 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a procedural matter, after the issuance of the October 2018 statement of the case (SOC), additional private medical evidence and additional VA medical records, including a June 2019 VA examination report, were added to the claims file but no waiver was obtained. Nonetheless, because the Board is granting the appeal, there is no prejudice to the Veteran in adjudicating the appeal. Turning to the relevant laws and regulations, 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 latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105 The provisions of 38 C.F.R. § 3.344(a), (b) prescribe additional requirements for rating reductions but only apply to ratings that have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The rating reduction in this case resulted in a reduction of VA compensation being paid to the Veteran, reducing his overall disability rating from 60 percent to 40 percent, effective August 1, 2018. Thus, the procedural protections of 38 C.F.R. § 3.105(e) apply. In March 2017, the AOJ notified the Veteran of the proposed rating reduction for Crohn's disease. In April 2018, he underwent a VA examination for the disability. In May 2018, the AOJ reduced the rating to 30 percent, effective August 1, 2018. Therefore, the procedural protections of 38 C.F.R. § 3.105(e) have been satisfied. Accordingly, the remaining question is whether the reduction in the rating is warranted based on the medical and lay evidence of record. At the time of the May 2018 reduction, a 60 percent rating for Crohn's disease had been in effect since May 2009. Thus, as the rating had been in effect for more than five years, the provisions of 38 C.F.R. § 3.344(a), (b), which provide additional regulatory hurdles to rating reductions, apply. That is, certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993). Three questions that must be addressed in determining whether a rating reduction is warranted. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, "the Board must 'establish, by a preponderance of the evidence that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the AOJ's reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Upon review of the evidence of record, the evidence supports a finding that the reduction was improper. As noted, because the rating had been in effect for longer than five years, the heightened protections of 38 C.F.R. § 3.344(a) and (b) apply. In this case, the AOJ made no findings with regards to any of the provisions of 38 C.F.R. § 3.344(a), including whether there was material improvement and that the material improvement would be maintained in the ordinary conditions of life. Specifically, the May 2018 rating decision which reduced the rating demonstrates that the AOJ appears to have essentially analyzed the issue of reduction in the same manner as it would analyze an increased rating claim. The AOJ did not address whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. In this regard, the 30 percent rating for Crohn's disease was assigned based on the findings of an April 2018 VA examination, private treatment records and the Veteran's statements. The AOJ indicated that the Veteran's July 11, 2018, statement and the private medical evidence showed ongoing treatment and reports of increased medicine for symptom control. However, the AOJ also found that the records continued to show symptoms of frequent symptoms of diarrhea (1-2 bowel movements per day), lower abdominal cramping and moderately severe symptoms, which support only a 30 percent evaluation. It was further indicated that the records were negative for anemia, malnutrition, numerous attacks per year with health only fair during remission, serious complication such as liver abscess or severe symptoms. However, in a February 2019 written statement submitted along with his substantive appeal, the Veteran described how Crohn's disease symptoms had continued to seriously affect his life and how his symptoms had not improved. In an April 2019 written statement, he argued that his symptoms had instead gotten worse in the past 2 years. Crohn's disease is rated by analogy under DC 7399-7323. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Under DC 7323, for ulcerative colitis, a 30 percent is warranted for moderately severe symptoms characterized by frequent exacerbations. A 60 percent rating is warranted for severe symptoms characterized by numerous attacks per year and malnutrition, with the residual health assessed as fair during remissions. A 100 percent disability rating is warranted for pronounced symptoms characterized by marked malnutrition, anemia, and general debility, or with serious complication such as liver abscess. At the April 2018 VA examination, the Veteran reported increased severe stomach cramping and nausea last year for which he sought formal evaluation through a private gastroenterologist. Colonoscopy confirmed active Crohn's disease. He was treated with prednisone, azathioprine (Imuran), and mesalamine. Intermittent watery to soft bowel movements up to 10 or 15 times a day during flares (which last 5 to 10 days at a time, and occur every 2 months) were noted. The Veteran related frequent episodes of bowel disturbance with abdominal distress. A typical exacerbation included diarrhea, abdominal pain/cramping, weight loss, and nausea, lasting several days at a time and requiring oral steroid treatment four times a year. He was currently 8 pounds below his baseline weight. Regarding the impact on his ability to work, it was noted that the Veteran had obtained special accommodations at work to allow for nearby access to restroom facilities. During acute flares, there was a decrease in work productivity noted by Veteran, but there had been no formal reprimands or warnings as a result. In January 2019, the Veteran reported symptoms of abdominal pain, bloating, gas, bowel changes, diarrhea, heartburn/reflux, difficulty swallowing, nausea, loss of appetite, weight loss, and immune deficiency. In May 2019, he was experiencing a flare-up of Crohn's disease. He was reported to be on a long-term dose of steroids and was hoping to ween off of them; however, the symptoms returned when he tried to taper, so he remained on the steroids. He was 13 pounds below his baseline weight. A June 2019 examiner reflected that the Veteran was currently on Prednisone 40mg once a day for a flare since December 2018 and he was unable to taper off the medication. He was also prescribed Hyoscyamine by his private gastroenterologist for abdominal pain, and was taking Humira injections. He experienced diarrhea (described as oily and watery stools) 8 to 10 times a day with nausea, abdominal pain, and loss of appetite. He had frequent episodes of bowel disturbance with abdominal distress and was 10 pounds below his baseline weight. There was no evidence of malnutrition or serious health complications. As noted above, in a rating reduction case, it is not sufficient to show that an improvement in a disability has actually occurred. That is, it is not sufficient to show that the Veteran's symptoms had improved. Instead, the evidence must also demonstrate that the improvement actually reflected an improvement in his ability to function under the ordinary conditions of life and work. Upon review of the record, the evidence does not reflect an actual change has occurred in the Veteran's disability; therefore, the reduction from 60 percent was improper. Even if the medical examinations showed that Crohn's disease fell within the criteria for a 30 percent rating, that fact, in and of itself, would not justify the reduction. As set forth above, to warrant a reduction, the evidence must show that the service-connected disability materially improved overall, resulting in an improvement in the ability to function under the ordinary conditions of life and work. In this case, the record is not sufficient to support a finding that the Veteran's disability actually improved as of August 1, 2018, resulting in an improvement in his ability to function under the ordinary conditions of life and work. The examiners recorded no such finding, and the Veteran has reported that he perceives no improvement in his symptomatology. For the foregoing reasons, the failure to properly apply the provisions of 38 C.F.R. § 3.344 renders the reduction from 60 percent to 30 percent void ab initio. The appropriate remedy in this case is a restoration of the 60 percent rating. Accordingly, under these circumstances, the previously-assigned 60 percent rating for Crohn's disease is restored, effective August 1, 2018. The appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Redman, Emily 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.