Veteranclaims’s Blog

February 23, 2022

Single Judge Application; rating reduction; Rating reductions are one of the few areas where VA, rather than a veteran, bears the burden of proof. Brown v. Brown, 5 Vet.App. 413, 421 (1993). VA can reduce an existing rating if it can show, by a preponderance of the evidence, that a veteran’s disability actually improves and that improvement “reflects an improvement in the veteran’s ability to function under the
ordinary conditions of life and work.” Id.; As Brown and Stern explain, § 3.344(a)’s requirement must be met before a protected rating can lawfully be reduced. Stern, 34 Vet.App. at 59 (citing Brown, 5 Vet.App. at 420);

Filed under: Uncategorized — veteranclaims @ 11:08 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4878
STEPHEN LAMARR HINES, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a)
this action may not be cited as precedent.
TOTH, Judge: Navy veteran Stephen Lamar Hines appeals a Board decision that found
that VA properly reduced his rating for his skin condition from 30% to 10%. Mr. Hines primarily
argues that the Board decision should be reversed because the Board overlooked a favorable factual
finding concerning the frequency with which his skin condition requires treatment. In response,
the Secretary concedes that the Board provided an inadequate statement of reasons or bases for
finding that a ratings reduction was warranted but contends that Mr. Hines has not identified any
errors warranting reversal. For the following reasons, the Court accepts the Secretary’s concession
but reverses the Board’s rating reduction and remands for reinstatement of the 30% rating.
I. BACKGROUND
Mr. Hines retired from the Navy in August 2005. He filed a service-connection claim for
bilateral dermatic hypohidrosis1 shortly after leaving service; VA granted service connection and
assigned a 30% rating in a February 2006 rating decision.
1 Hypohidrosis is a condition characterized by “abnormally diminished sweating.” Hypohidrosis, DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 891 (33d ed. 2020).
2
He reported for a new VA examination in May 2011 and the examiner indicated that Mr.
Hines was treating his skin condition with ammonium lactate cream three times a day and
hydrophilic ointment six times a day. Based on this exam, VA continued his 30% rating. Mr. Hines
underwent another exam in September 2015 where he reported the same treatment regimen. After
the 2015 exam, VA continued his 30% rating.
Mr. Hines underwent a new skin examination in 2019, at which time he reported no current
skin lesions and stated that he was treating his skin condition with moisturizing lotion before bed
each night. The 2019 examiner observed no symptoms of dermatic hypohidrosis and remarked that
the condition was currently “quiescent and asymptomatic” due to Mr. Hines’s use of moisturizing
lotion. R. at 783.
In an August 2019 rating decision, VA reduced Mr. Hines’s rating to 10%. His combined
disability rating remained 80%, which means the disability compensation he received also
remained the same. Mr. Hines appealed to the Board. The Board found that a reduction was
warranted because Mr. Hines had fewer symptoms and that his condition required less treatment
than during the periods covered by earlier examinations. Mr. Hines appealed to this Court.
II. ANALYSIS
Rating reductions are one of the few areas where VA, rather than a veteran, bears the
burden of proof. Brown v. Brown, 5 Vet.App. 413, 421 (1993). VA can reduce an existing rating
if it can show, by a preponderance of the evidence, that a veteran’s disability actually improves
and that improvement “reflects an improvement in the veteran’s ability to function under the
ordinary conditions of life and work.” Id.
Ratings that have been in effect longer than 5 years, such
as Mr. Hines’s, have enhanced procedural safeguards. 38 C.F.R. § 3.344(a) (2021). Section 3.344
provides that even when “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.” Id. And, “[r]atings on
account of diseases subject to temporary or episodic improvement, e.g., . . . many skin diseases,
etc., will not be reduced on any one examination, except in those instances where all the evidence
of record clearly warrants the conclusion that sustained improvement has been demonstrated.” Id.
Failure to make a required finding under § 3.344(a) warrants reversal. Stern v. McDonough, 34
Vet.App. 51, 59 (2021). Regardless of the longevity of any rating, a reduction decision must be
3
based on the entire medical history of the pertinent disability. Brown, 5 Vet.App. at 420. The Board
must support its findings with a statement of reasons or bases that is “adequate to enable an
appellant to understand the precise basis for the Board’s decision as well as to facilitate review in
this Court.” Hedgepath v. Wilkie, 30 Vet.App. 318, 325 (2018).
Mr. Hines argues that the Board erred by ignoring favorable evidence in the record, failing
to consider all available medical evidence, and improperly requiring him to prove that he deserved
an increased rating rather than requiring VA to prove that a reduction was warranted. He also
argues that 38 C.F.R. § 3.105(e), as applied here, conflicts with 38 C.F.R. § 7104(a) and is therefore
void. Mr. Hines has requested that the Court reverse VA’s rating reduction.
In response, the Secretary concedes that the Board’s decision is not supported by an
adequate statement of reasons or bases. However, he argues that remand, rather than reversal, is
the appropriate remedy. The Court first addresses the Secretary’s concession of error, then assesses
the Board’s compliance with § 3.344(a), and finally explains why reversal is warranted under these
circumstances.
At the outset, the Secretary acknowledges that the Board did not provide an adequate
statement of reasons or bases for finding that Mr. Hines’s ability to function under the ordinary
conditions of life and work had increased.2 The Court agrees that the Board failed to provide
reasons for such a finding. Without any rationale to review, the Court is unable to properly review
the Board’s conclusion that the improvement in Mr. Hines’s condition increased his ability to
function under the ordinary conditions of life and work.
The Court further notes that that the Board failed to make requisite findings under §
3.344(a). Here, the Board acknowledged that “where material improvement is shown” for a
disability that has had a stable rating for longer than 5 years, it must determine “whether the
evidence makes it reasonably certain that the improvement will be maintained under the ordinary
conditions of life.” R. at 7 (quoting 38 C.F.R. § 3.344(a)). However, the Board never made a
finding as to whether the noted improvement in Mr. Hines’s condition was reasonably certain to
be maintained under the conditions of ordinary life.
2 The Secretary also concedes that the Board erred by “fail[ing] to provide an adequate statement of reasons
or bases as to whether a pre-decisional duty to assist error existed at the time of the January 2019 Rating decision.”
Secretary’s Br. at 11.
4
Having established that the Board erred, the Court must decide whether to remand Mr.
Hines claim for readjudication or whether to reverse the Board’s decision and thereby reinstate his
30% rating. This Court has said that remand is the appropriate remedy where the Board makes all
required findings to reduce a rating but provides an inadequate rationale for those findings. Stern,
34 Vet.App. at 56-58. However, where the Board fails to make a required finding for reducing a
disability rating, it has failed to carry its burden of proof and reversal is the appropriate remedy.
Id. at 59.
Here, reversal is warranted because the Board failed to make a finding under § 3.344(a) as
to whether improvement is reasonably certain to be maintained under the ordinary conditions of
life. As Brown and Stern explain, § 3.344(a)’s requirement must be met before a protected rating
can lawfully be reduced. Stern, 34 Vet.App. at 59 (citing Brown, 5 Vet.App. at 420)
. Accordingly,
remand would be inappropriate in this situation because VA failed to carry its burden. And, as the
appellant notes, the Court would not remand if it was the appellant who failed to meet his burden.
The Court need not address Mr. Hine’s remaining arguments, including his argument that
38 C.F.R. § 3.105(e) is invalid as applied to his situation. Because the Court reverses and remands
with instructions to reinstate his 30% rating, all other allegations of error are moot, and the Court
does not address them here. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009).
Accordingly, the Board’s March 17, 2020, decision is REVERSED and the matter
REMANDED. The Board shall remand to the Agency with instructions to reinstate Mr. Hines’s
30% rating. The balance of the appeal is DISMISSED.
DATED: February 22, 2022
Copies to:
Christopher Glenn Murray, Esq.
VA General Counsel (027)

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