SCARS OTHER OF HEAD FACE OR NECK

Summary

The veteran, who served from April 2013 to March 2017, appeals the reduction of his disability rating for right wrist scars. The veteran was initially granted service connection for right wrist scars, status post ORIF surgery, with a 10 percent rating in April 2017, based on two painful scars. In a June 2021 higher-level review decision, this rating was reduced to 0 percent effective July 1, 2021. The Board reviewed the evidence of record at the time of the prior rating decisions. The Board noted that for a reduction to be proper, there must be evidence showing (1) an improvement in the disability and (2) that this improvement reflects a better ability to function under ordinary conditions of work and life. The Board found that while later examinations noted tenderness to palpation over the scar, they did not find the scars themselves to be painful, unlike the initial examination which noted pain when the scar was touched and the veteran wearing a brace. The Board concluded that no actual improvement in the disability or the veteran's ability to function was demonstrated. Therefore, the reduction of the 10 percent rating to 0 percent was improper, and the 10 percent rating is restored.

Rationale

Later examinations noted tenderness to palpation but not painful scars.; No evidence demonstrated actual improvement in ability to function.; Reduction was improper as improvement was not shown.

Full Decision Text

Citation Nr: A26034209
Decision Date: 04/14/26	Archive Date: 04/14/26

DOCKET NO. 210705-170150
DATE: April 14, 2026

ORDER

The reduction of a 10 percent rating for right wrist scars, status post open reduction and internal fixation (ORIF) surgery, to noncompensable (0 percent), effective July 1, 2021, was improper; it is therefore void and the 10 percent rating is restored.

FINDING OF FACT

At the time of the April 2021 rating decision that reduced the Veteran's disability rating for right wrist scars, status post ORIF surgery from 10 percent to 0 percent, actual improvement in his scars in terms of his ability to function under the ordinary conditions of work and life was not demonstrated by the evidence of record.

CONCLUSION OF LAW

The reduction of the rating for right wrist scars, status post ORIF (historically painful), from 10 percent to 0 percent disabling effective July 1, 2021, was not proper; it is therefore void, and a restoration of the 20 percent rating from July 18, 2023, is warranted.  38 U.S.C. § 1155, 5107, 5112; 38 C.F.R. § 3.105 (e), 3.344, 4.118, Diagnostic Code 7804.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 2013 to March 2017.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran's rating for right wrist scars was decreased to 0 percent in an April 2021 rating decision.  In April 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2021 rating decision.  In June 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior April 2021 rating decision.

In the July 6, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on October 9, 2024.  Therefore, the Board may only consider the evidence of record at the time of the April 2021 rating decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

1. Propriety of the reduction in rating for right wrist scars 

The Veteran was originally granted service connection for scar, right wrist status post ORIF surgery in an April 2017 rating decision.  At that time, this disability was assigned a 10 percent rating effective March 29, 2017.

The Veteran underwent right wrist surgery in October 2020 and filed an increased rating claim for the underlying right wrist disability later that month.

In the June 2021 HLR decision on appeal, this rating was decreased to 0 percent effective July 1, 2021.  The question before the Board is whether this reduction was proper.

Disability ratings may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  38 C.F.R. § 3.105 contains notice provisions and
 2017.

The Veteran underwent right wrist surgery in October 2020 and filed an increased rating claim for the underlying right wrist disability later that month.

In the June 2021 HLR decision on appeal, this rating was decreased to 0 percent effective July 1, 2021.  The question before the Board is whether this reduction was proper.

Disability ratings may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  38 C.F.R. § 3.105 contains notice provisions and procedures applicable to rating reductions.  Because the Veteran's combined rating did decrease with the action taken by the RO, these provisions apply in this case.  Here, in the December 2020 rating decision and a January 2021 notification letter, the RO notify the Veteran of the proposed reduction and the basis for the reduction was explained.  The RO informed the Veteran he had 60 days to submit evidence to show that the change should not be made, and 30 days to request a hearing.  The Veteran did not request a pre-determination hearing or otherwise respond to that proposed reduction within the prescribed period.  As such, the Board finds that the procedural requirements for the rating reduction were followed in this case.  38 C.F.R. § 3.105.

Substantively, the criteria governing rating reductions for service-connected disabilities is found in 38 C.F.R. § 3.344.  The provisions of 38 C.F.R. § 3.344 (a) and (b) apply to ratings that have been continued for five years or more.  Here, the rating decision was within five years of the Veteran's initial grant of service connection so no rating had been in effect for five or more years and the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply.

Turning to the propriety of that action, a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred.  38 C.F.R. § 3.344.

Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.  See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993).  These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.  Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 350 (2000).

In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated).  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).  The Veteran need not demonstrate that he is entitled to retain the higher rating; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted.  See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993).

Under Faust, two findings are necessary in this case in order for the reductions to be proper: (1) that an improvement in the disability has actually occurred; and, (2) that improvement reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.

Turning to the question of whether actual improvement was shown, the Board notes that the 10 percent rating for scar, right wrist status post ORIF (painful) was based on finding two painful right wrist scars.  This was based in part on the July 
 Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993).

Under Faust, two findings are necessary in this case in order for the reductions to be proper: (1) that an improvement in the disability has actually occurred; and, (2) that improvement reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.

Turning to the question of whether actual improvement was shown, the Board notes that the 10 percent rating for scar, right wrist status post ORIF (painful) was based on finding two painful right wrist scars.  This was based in part on the July 2016 scars/disfigurement disability benefits questionnaire (DBQ), which found two painful scars, noting the Veteran's report that when the scar is touched it sends an electric shock.  He wore a brace to protect it from any external pressure or touching.

The November 2020 and December 2020 wrist conditions DBQs and December 2020 peripheral nerves conditions DBQ noted associated right wrist scars but found that none of these scars were painful or unstable; and they did not have a total area equal to or greater than 39 square cm (6 square inches).  The December 2020 examiner, however, did note tenderness to palpation over the radial side volar scar.  See December 2020 wrist conditions DBQ.

At his hearing, the Veteran reported painful scars, stating that touching or brushing up against them caused sharp pain.

Comparing the examinations, the latter examiners did not find any painful scars but did note tenderness to palpation in the area of the scar.  Functionally, no distinction has been made between the two in terms of pain when the scar is touched.  Thus, there is no evidence demonstrating actual improvement in his ability to function under the ordinary conditions of work and life.  Therefore, the reduction of the Veteran's 10 percent rating to a noncompensable (0 percent) rating effective July 1, 2021, was improper and restoration of the Veteran's 10 percent rating is warranted.

 

 

JIMMY L. BARDIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Houbeck, Bridgid

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.