[DECISION ASSESSMENT DOCUMENT]{.underline}

DOCKET NUMBER: 92-325 ACTIVITY: Rating

NAME: Brown v. Brown

ISSUE: Reasons or bases in rating reduction cases

ACTION BY COURT: Reversal Date: 8/16/93

BEFORE JUDGES: [Steinberg]{.underline}, Nebeker, Holdaway

[Significant points]{.underline}:

\(1\) A new proposal may be required under 38 CFR § 3.344 if the 5-year
requirement in subsection (c) will be met on the effective date of
reduction.

\(2\) The 5-year period in § 3.344(c) runs from the effective date of
the current (or higher) evaluation until the effective date of the
reduced rating.

\(3\) Provisions of 38 CFR §§ 4.1, 4.2, 4.10, and 4.13, apply to all
rating reductions.

[Facts]{.underline}:

A 30% rating was in effect for service-connected asthma since 2/2/86.
During 1990, a rating board proposed reducing the evaluation to 10%. The
proposal was later affirmed by a Hearing Officer, and benefits were
ultimately reduced effective 4/1/91.

[Court Analysis]{.underline}:

The Court determined that § 3.344 must be applied prospectively if the
rating will have been in effect for 5 years when actually reduced, and
that a new proposal may be required for that purpose.

The BVA decision did not fully consider the adequacy of the review
examination or determine if sustainable improvement was shown (§
3.344(a)). Similarly, applicable provisions of 38 CFR §§ 4.1, 4.2, 4.10,
and 4.13 were not addressed.

In any rating reduction case, regional office and BVA decisions must
ascertain whether or not (1) there was an actual change in the
disability, (2) review examinations were thorough, and (3) ability to
function has improved.

Finally, the Court noted that 38 CFR § 4.7 is inapplicable to rating
reductions since the burden of proof is on the government to demonstrate
material improvement.

[Service Analysis]{.underline}:

The requirements of § 3.344(a) emphasize policies which apply to all
ratings.

It is always necessary to consider the adequacy of an examination, and
to evaluate each disability in relation to its history and ordinary
functioning.

For diseases (not injuries) which may fluctuate in severity, obligations
for establishing improvement are heightened after an evaluation has been
in effect for 5 years. A reexamination is required in these cases unless
sustained improvement is clearly demonstrated. While § 3.344(a) includes
specific guidance on evaluating the effects of superimposed psychiatric
disorders, it also reiterates several Part 4 principles which apply to
all evaluations.

RECOMMEND VBA ACTION:

38 CFR § 3.344 should be reviewed to determine if there are any
redundant provisions which may be eliminated, and to consider whether or
not the five-year requirement should be revised.

M21-1, Part VI, Chapter 9 should be modified to require an explanation
of the general considerations involved in any rating reduction (i.e.,
(1) adequacy of the review examination; (2) evidence of actual change;
(3) review of the entire history based on evidence of record; and (4)
evidence of improved ability to function under the ordinary conditions
of life and work).

Chapter 9 should be revised also to require express consideration of §
3.344 prior to any final reduction of an evaluation which has been in
effect for at least 5 years (including findings that (1) the regulation
applies currently or prospectively; (2) all of the evidence clearly
shows sustained improvement after one review examination, or a
preponderance of the evidence shows sustained improvement based on more
than one examination; and (3) it is reasonably certain the improvement
will be maintained under the ordinary conditions of life).

Copies of this assessment document will be provided to regional offices
as a reminder of the findings which must be addressed when a reduced
disability compensation rating is proposed.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [8/31/93]{.underline}

Yes No J. Gary Hickman Date