Citation Nr: 23023391 Decision Date: 04/21/23 Archive Date: 04/21/23 DOCKET NO. 18-24 670 DATE: April 21, 2023 ORDER The reduction in the Veteran's skin disability rating from 30 percent to 0 percent, for a skin condition described originally as Reiter's Syndrome and now described as dermatitis, was not proper and therefore a return to a 30 percent rating is granted. FINDING OF FACT The reduction from 30 percent to 0 percent disabling for the Veteran's service-connected skin condition was not proper as the Veteran continued to report a chronic but intermittent rash with constant treatment since it was originally service-connected, and the evidence did not show any improvement in the condition. CONCLUSION OF LAW The rating reduction from 30 percent disabling to 0 percent disabling for the Veteran's service-connected skin disability, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from January 2009 to January 2010, March 2011 to December 2011, January 2012 to May 2012, and August 2018 to June 2019. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2023, the Board remanded the claim for the issuance of a Supplemental Statement of the Case (SSOC), to consider evidence that was added to the record since the April 2018 Statement of the Case (SOC) and not waived consideration by the RO. In February 2023, the RO, changed the Veteran's skin condition from Reiter's Syndrome to dermatitis and increased the rating from zero percent to 10 percent effective February 3, 2023. At that same time, the RO issued a SSOC, and the claim is back before the Board for adjudication. Rating Reductions When warranted the VA will reduce benefits or even discontinue them. However, the circumstances under which rating reductions can occur is carefully set out in the VA regulations. The VA regulations provide that where a reduction in rating for a service-connected disability is being considered, the VA has to first prepare a proposal of the reduction or discontinuance, which sets forth all material facts and reasons for the reduction. See 38 C.F.R. § 3.105(e). The Veteran must also be provided notice of the proposed reduction and given the opportunity to respond. A final rating action and reduced award is not effective until the last day of the month following 60 days from the date of the proposal of the reduction. Id. The Board notes that when a RO reduces a rating without following the applicable regulations, the reduction is void, ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). After the above VA regulations are met, the Board must consider whether the reduction was factually supported. For ratings that have been in place for less than five years, a reexamination disclosing improvement, physical or mental, will be sufficient to support a reduction in a rating. See 38 C.F.R. § 3.344(c). The regulations note disabilities with ratings for less than five years have not stabilized and are likely to improve. Id. Additional requirements apply to ratings that have been in effect for more than five years or for total disability ratings. See 38 C.F.R. § 3.343, 3.344(a)-(b). The Board acknowledges that governing law provides that 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. Care must be taken to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in the descriptive terms used in the report, when viewed in relation to the disability's history. See 38 C.F.R. §§ 4.1, 4.2, 4.13. In a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating claims case. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The reduction in the Veteran's skin disability rating from 30 percent to 0 percent was not proper and therefore a return to a 30 percent rating is granted. In the present case the evidence shows that the above-described procedural regulations were followed. In particular, in January 2015, the Veteran was provided the notice as set forth in 38 C.F.R. § 3.105(e). See Rating Decision Narrative and Correspondence dated in January 2015. Then in May 2015 a final rating decision was issued. The reduction in rating was not implemented until August 1, 2015, which was more than 60 days after the proposal. Thus, the Board finds that the RO appropriately followed the described procedural provisions as set forth in 38 C.F.R. § 3.105(e). The Board also considered whether the reduction was factually supported. The Veteran had a VA examination in January 2013, which described a rash on the Veteran's foot and ankle. The examiner considered the Veteran's statements and found that the Veteran had Reiter's Syndrome with about 5 percent of the total body being affected. The examiner noted that the Veteran had to use prednisone for the condition constantly and when the Veteran went off prednisone the condition would return. See VA examination received in January 2013. Then in October 2014, the Veteran had another VA examination. In October 2014, the Veteran had red, scaly, raised lesions on his third toe of each foot and on the right anterior of his lower legs. He also had a residual dark colored areas on his feet, ankle, and lower legs from healed lesions. See C&P Examination received October 2014. The Veteran explained that he was told that his rash was caused by Reiter's syndrome but that his treating providers were unsure. He explained that he had allergy testing and he had received new boots and bought new socks, but he continued to have an ongoing rash. Id. The examination suggested that the Veteran had ongoing treatment with various creams and medications, but so far treatment had been unsuccessful. Id. The two VA examinations were generally consistent with VA treatment records. The Veteran stated in his notice of disagreement (NOD) in September 2015, that he disagreed with his reduction because his condition had not gone away. He explained that he had various treatments but that his providers still did not know what he had. See NOD received September 2015. All the VA medical records were also considered and any other available evidence in the record. Considering all the evidence, the Board finds that the reduction was not factually supported. In particular, the Board notes that the Veteran's condition was changed from Reiter's syndrome to dermatitis on February 3, 2023, and on that date the Veteran's skin condition rating was increased from zero percent to 10%. One might assume this meant the Veteran's skin condition increased in severity; however, the records actually support that the Veteran has had an ongoing, chronic but intermittent, condition to his skin. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In particular, the Veteran is competent to report his symptoms, like symptoms of pain or discomfort. For rating purposes, when a rating has continued for less than five years a reexamination disclosing improvement, physical or mental, will be sufficient to warrant a reduction in a rating. See 38 C.F.R. § 3.344(c). The Board acknowledges that the examinations performed in January 2013 and October 2014 noted that the Veteran's treatment had changed. The Veteran was using prednisone for a time and then he was using various creams. However, the Board must also consider whether the examiner's evaluations reflect an actual change in the Veteran's condition. As the Veteran continued to report that he had an ongoing and chronic rash, which was described similarly in both his examinations, the Board finds that the evidence as a whole does not support that there was an actual change in condition. When a reduction is considered, the Veteran does not bear the burden of demonstrating entitlement to retention of the higher rating. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. See Brown v. Brown, 5 Vet. App. 413, 421-422 (1993), see also Kitchens v. Brown, 7 Vet. App. 320 (1995). As an aside, the Board also notes that the evidence of record does not support a rating in excess of 30 percent for the Veteran's ongoing skin rashes. In particular, he has not had lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas, or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Accordingly, the Board finds that entitlement to restoration of the 30 percent rating for a skin condition, effective August 1, 2015, is warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Parnell 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.