Citation Nr: 1330164 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 13-05 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE 1. Whether reduction in the disability rating for status post left shoulder strain with chronic multi-directional instability from 20 percent to noncompensable was proper, effective September 1, 2009. 2. Entitlement to a disability rating in excess of 20 percent for status post left shoulder strain with chronic multi-directional instability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from July 2000 to February 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA), in which the RO reduced the Veteran's disability rating for status post left shoulder strain with chronic multi-directional instability from 20 percent to noncompensable, effective September 1, 2009. A Board video conference hearing was scheduled in April 2013. However, the Veteran failed to appear and has not filed a motion requesting a new hearing. Of note, a review of the RO's June 2009 rating decision and statement of the case (SOC) dated in February 2013 shows that the RO appears to have treated the reduction of the 20 percent rating as a claim for an increased rating. Of particular note, the SOC phrased the issue solely as one of an evaluation (or increased disability rating). Nevertheless, it is clear that the Veteran was seeking to appeal the reduction of his disability rating. Moreover, it also appears that he has asserted a claim for an increased rating. In light of the grant as to the issue of whether the reduction was proper, the issues have been characterized as set forth on the front page of this decision. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. However, with the exception of a July 2013 brief submitted by the Veteran's representative, a review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to an increased rating for status post left shoulder strain with chronic multi-directional instability is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. A June 2009 rating decision decreased the rating for the Veteran's service-connected status post left shoulder strain with chronic multi-directional instability from 20 percent to noncompensable, effective September 1, 2009. 2. At the time of June 2009 rating decision, a 20 percent rating for service-connected status post left shoulder strain with chronic multi-directional instability, was in effect from February 16, 2004 to September 1, 2009, over five years. 3. The RO's June 2009 rating decision, which reduced the Veteran's rating for service-connected status post left shoulder strain with chronic multi-directional instability, from 20 percent to noncompensable, effective September 1, 2009, did not consider required regulatory provisions and denied the Veteran due process. CONCLUSION OF LAW The RO's June 2009 rating decision, which reduced the Veteran's rating for his service-connected status post left shoulder strain with chronic multi-directional instability, from 20 percent to noncompensable, is void ab initio, and the criteria for restoration of the 20 percent rating for this condition are met. 38 C.F.R. § 3.344 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the Board's favorable decision with respect to the issue herein decided, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis The issue on appeal is whether the reduction in the disability rating from 20 percent to noncompensable, for status post left shoulder strain with chronic multi-directional instability, effective September 1, 2009, was legally proper. Regulations provide that where the 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 reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, that he has 60 days to present evidence showing why the reduction should not be implemented, and that he may request a hearing. 38 C.F.R. § 3.105(e). In the instant case, the Veteran was notified of the proposed reduction in a March 2009 rating decision and given 60 days to respond. Accordingly, the notice provisions of 38 C.F.R. § 3.105(e) were met in this case. The provisions of paragraphs § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). In this case, the effective date for the Veteran's 20 percent rating for status post left shoulder strain with chronic multi-directional instability is February 16, 2004. Thus, at the time of the RO's June 2009 rating decision, the 20 percent rating had been in effect for more than five years. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. See 38 C.F.R. § 3.344(a). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, 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. Moreover, though 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. See Id. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination -- months from this date, § 3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. See 38 C.F.R. § 3.344(b). In Brown v. Brown, 5 Vet. App. 413, 420 (1993), the United States Court of Appeals for Veterans Claims (Court) articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. 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 the veteran's ability to function under the ordinary conditions of life and work. Initially, the Veteran was afforded a VA fee-based examination in February 2004 shortly after his discharge from service. The Veteran reported pain and instability. He indicated that he did not have complete normal use of his left arm. He was able to perform his activities of daily living and was currently employed. It was observed that he was right hand dominant. On examination, the left shoulder hung lower than the right and had a positive apprehension test for both abduction and external rotation and for adduction and internal rotation. He could voluntary sublux the left shoulder and crepitus of the left shoulder was noted. Range of motion of the left shoulder was normal. Range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. A contemporaneous x-ray was normal. The diagnosis was status post left shoulder strain with recurring multidirectional instability. The subjective factors were history of pain and the objective factors were positive apprehension tests, crepitus and voluntary subluxation of the shoulder. In a March 2004 rating decision, the RO granted service connection for status post left shoulder strain with chronic multi-directional instability and assigned a 20 percent rating by analogy under Diagnostic Code 5203 for dislocation or nonunion of the clavicle or scapula. See 38 C.F.R. § 4.71a. In February 2009, the RO scheduled the Veteran for an examination, which was done in March 2009. The claims file was reviewed. The Veteran reported flare-ups of discomfort if lying on his left side, which resolved in 30 minutes. He also reported flare-ups if having to lift heavy objects above his head or grabbing an object and pulling it down. He also awoke with pain flare-ups up to two times per week after activities of heavy lifting. The Veteran reported limitation of motion and function during flare-ups. He admitted to weakness but denied giving way or instability. He admitted to a clicking or grinding sensation as well as locking. However, he denied any dislocation or recurrent subluxation. There were no affects on his activities of daily living. Physical examination was essentially the same as the prior examination in that crepitus was noted as well as normal range of motion. X-rays were again normal. The diagnosis was left shoulder strain with residual pain, but no chronic multi-directional instability found on examination. In a March 2009 rating decision, the RO proposed to reduce the Veteran's rating to noncompensable based on the findings in this examination. Subsequently, the Veteran submitted a private April 2009 MRI showing mild rotator cuff tendinopathy with minor bursitis. A contemporaneous handwritten statement from a private medical doctor at Pittsburgh Bone and Joint Surgeons indicated that the Veteran had chronic subluxation of the left shoulder and would benefit from surgery. Thereafter, the RO issued the June 2009 rating decision reducing the Veteran's disability rating to noncompensable, effective September 1, 2009. Importantly, in his substantive appeal dated March 2013, the Veteran reported that he had experienced painful motion and instability ever since the in-service injury. He further indicated that there had been no change in his condition. Again, a review of the RO's June 2009 rating decision and February 2013 SOC shows that the RO appears to have treated the reduction of the 20 percent rating as a claim for an increased rating. Of particular note, the SOC phrased the issue solely as one of an evaluation (or increased disability rating). In sum, the claim was treated as an increased rating claim, and failed to include or discuss the provisions of 38 C.F.R. § 3.344. Furthermore, as a factual matter, to the extent that the RO indicated that the findings in the Veteran's March 2009 VA examination report warranted the reduction, when comparing the two examinations reports from 2009 to 2004, the findings are essentially the same, except the most recent examiner found no findings of instability. However, a subsequent April 2009 private report again showed findings of chronic subluxation and indicated the need for surgery. Given that the private treatment record showed chronic subluxation the following month, it cannot be considered reasonably certain that any material improvement found at the March 2009 VA examination would be maintained under the ordinary conditions of life. Further, importantly, the Veteran has competently reported no change in his disability since the in-service injury and has maintained that he has continued to experience painful motion and instability. Again, his lay statements also weigh against a finding that any material improvement would be maintained under the ordinary conditions of life. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992); and Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Simply stated, as the June 2009 rating decision that accomplished the reduction of the 20 percent evaluation for the Veteran's service-connected left shoulder did not apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The Board notes that the Veteran was never provided notice of 38 C.F.R. § 3.344 in the June 2009 rating decision or subsequent SOC; the decision to reduce was not in accordance with the law because the RO did not, for instance, make a finding that the March 2009 VA examination, which was used as a basis for the reduction, was as full and complete as the examination on which the 20 percent rating was established in 2004; and there were also no findings that it was reasonably certain that any material improvement found would be maintained under the ordinary conditions of life. In sum, the Board finds that the Veteran's 20 percent evaluation was improperly reduced, that the reduction of the evaluation is void ab initio, and that the 20 percent evaluation for the Veteran's service-connected status post left shoulder strain with chronic multi-directional instability, should be restored. Accordingly, the Board finds that restoration of the 20 percent evaluation for service-connected status post left shoulder strain with chronic multi-directional instability, effective September 1, 2009, is warranted. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). ORDER As the June 2009 reduction of the Veteran's 20 percent rating was improper, restoration of the 20 percent rating for service-connected status post left shoulder strain with chronic multi-directional instability, effective September 1, 2009, is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND A review of the record indicates that further development is necessary with respect to the remaining issue on appeal. As discussed above, the Veteran was last afforded a VA examination in March 2009, over four years ago. Although no instability was observed on examination, the Veteran subsequently submitted an April 2009 private opinion showing evidence of chronic subluxation of the left shoulder. Further, x-rays of the left shoulder were normal at the examination, but a follow up MRI showed mild rotator cuff tendinopathy with minor bursitis. Moreover, in his March 2013 substantive appeal, the Veteran reported that he experienced chronic pain and instability, which would at least indicate a worsening of symptoms since the last March 2009 examination. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Given the subsequent private evidence documenting additional symptoms and the statement by the Veteran, the Board finds that new a VA examination is necessary to determine the current severity of the Veteran's service-connected left shoulder disability. Moreover, it appears that the Veteran has received treatment from Pittsburgh Bone and Joint Surgeons. While the April 2009 private opinion and MRI are of record, no other clinical records have been associated with the claims file. As these records are pertinent to the Veteran's claim, the RO should contact the Veteran to obtain appropriate authorization so that these records can be obtained. Moreover, the RO should request that the Veteran identify and submit authorization, if necessary, for any other VA or non-VA providers who have treated his left shoulder disability. See 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and obtain appropriate authorization so that any clinical records from Pittsburgh Bone and Joint Surgeons can be obtained. Moreover, request that the Veteran identify and submit authorization, if necessary, for any other VA or non-VA providers who have treated his left shoulder disability. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected left shoulder disability. The claims folder should be made available to the examiner(s) for review. The examiner should conduct range of motion testing and, to the extent possible, should indicate (in degrees) the point at which any motion is limited by pain. The examiner should also offer an opinion as to the extent, if any, of additional functional loss due to incoordination, weakness and fatigue, including during flare-ups. The examiner should also comment on the Veteran's functional impairment with respect to his activities of daily living and the effect on his employment and daily life. 3. In the interest of avoiding future remand, review the examination report to ensure that the applicable rating criteria have been clearly addressed with respect to the left shoulder disability. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs