Citation Nr: 1409497 Decision Date: 03/06/14 Archive Date: 03/18/14 DOCKET NO. 11-03 752 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Whether the reduction of a disability rating for left clavicle fracture with residual left rotator cuff syndrome, from 30 percent to 20 percent, effective on October 1, 2010, was proper. 2. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from August 1975 until July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2010, July 2010 and September 2010 rating decision from the RO. Although the RO characterized the claim as that of an increased evaluation for the service-connected left clavicle fracture, the Board notes the instant appeal involves a reduction in the rating, not a rating increase. See, e.g., Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The Board has therefore recharacterized the issues to more accurately reflect the provisions of law under which the appeal must be considered. See 38 C.F.R. § 19.35 (Providing that the RO's certification of an appeal is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue). The Virtual VA and VBMS files have been reviewed. The issue of entitlement to a TDIU rating is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a March 2010 rating decision, the RO proposed to reduce compensation benefits from 30 percent to 20 percent for the service-connected left clavicle fracture with residual left rotator cuff syndrome. The Veteran was notified of this proposed reduction in March 2010; he was also notified that he had 30 days to request a hearing and 60 days to submit additional evidence. 2. The reduction from 30 percent to 20 percent for the service-connected left clavicle fracture with residual left rotator cuff syndrome was accomplished by way of a rating decision issued in July 2010. 3. The July 2010 rating decision reducing the rating for the service-connected left clavicle fracture with residual left rotator cuff syndrome from 30 percent to 20 percent was improper because it failed to consider the provisions of 38 C.F.R. § 3.344 and was not based on a VA examination showing material improvement under the ordinary condition of life. CONCLUSION OF LAW The reduction in the rating for the left clavicle fracture with residual left rotator cuff syndrome from 30 percent to 20 percent, effective from October 1, 2003, was improper and is void ab initio. 38 U.S.C.A. §§ 1101, 1155, 5103, 5103A, 5107, 5112 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1-4.14, 4.40- 4.46, 4.59, 4.71a including Diagnostic Codes 5201 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance In light of the favorable decision, a discussion addressing whether VA's duties to notify and assist the Veteran have been complied with is not required at this time See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Legal Criteria VA regulations provide that, where the reduction in a disability rating of a service-connected disability or employability status is considered warranted and the lower disability rating 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. 38 C.F.R. § 3.105(e). The beneficiary will be notified of the contemplated action and furnished detailed reasons for the reduction, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. Id. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). The provisions of 38 C.F.R. § 3.344(a) have been interpreted as imposing four specific requirements on VA prior to a rating reduction: (1) VA must review "the entire record of examinations and the medical-industrial history...to ascertain whether the recent examination is full and complete;" (2) "[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction;" (3) "[r]atings on account of diseases subject to temporary and episodic improvement, e.g.,...asthma..., 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;" and (4) "[al]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." Brown v. Brown, 5 Vet. App. 413, 419 (1993) (quoting from 38 C.F.R. § 3.344(a)). If the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable, and a rating reduction fails to discuss those regulations, the reduction is void ab initio. Brown v Brown, 5 Vet. App. 413, 420 (1993) (holding that rating reduction was void ab initio where there was no discussion of whether the examination that served as the basis for the reduction was as full and complete as the examination that served as the basis for the grant). See also Kitchens v. Brown, 7 Vet. App. 320, 324 (1995) (noting that the Board failed to discuss the applicability of 38 C.F.R. § 3.344). In Greyzck v. West, 12 Vet. App. 288 (1999), the Court of Appeals for Veterans Claims (Court) observed that the regulatory language in 38 C.F.R. § 3.344(a) had not changed since its adoption in February 1961 and, citing Brown and Kitchens, declared that it had consistently held that where VA reduces a disability rating without complying with applicable VA regulations, the reduction is void ab initio. Id.at 292. The applicable legal standard summarized in Sorakubo v. Principi, 16 Vet. App. 120 (2002) requires that in the case of a rating reduction, the record must establish that the reduction is warranted by a preponderance of the evidence and that the reduction was in compliance with 38 C.F.R. § 3.344. See Brown, 5 Vet. App. at 421. 38 C.F.R. § 3.344(c) provides that § 3.344(a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (c). Rating Criteria As an initial matter the record reflects the Veteran is right hand dominant. See VA examinations and VA and private treatment records. Accordingly, under 38 C.F.R. § 4.71a, DC 5201, the diagnostic code under which the Veteran's disability is currently rated, for the minor arm, a 20 percent rating is warranted for limitation of motion from midway between side and shoulder level, and a 30 percent rating is warranted for limitation of motion to 25 degrees from the side, which is the highest rating provided for in this Code. Normal range of motion of the shoulder is forward elevation (flexion) and abduction of 0 to 180 degrees. 38 C.F.R. § 4.71, Plate I. Assignment of a disability rating should take into account a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45, 4.59; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Analysis The Veteran contends, in essence, that the disability rating for his left clavicle fracture with residual left rotator cuff syndrome was improperly reduced. By way of history, the RO granted service connection for left clavicle fracture with residual left rotator cuff syndrome in a May 1980 rating decision. At that time a 10 percent disability rating was assigned, effective on June 28, 2002. Subsequently, a September 2002 rating decision increased the disability rating to 20 percent effective on June 28, 2002. A March 2004 rating decision granted an increased 30 percent rating, effective on February 19, 2004. Subsequently, the Veteran applied for a temporary total evaluation based upon surgery. A November 2009 rating decision implemented a temporary total disability rating of 100 percent for the left shoulder for the surgery and convalescence from October 21, 2009 until February 28, 2010. The November 2009 rating decision also assigned a 30 percent disability rating effective on March 1, 2010. The Veteran was reevaluated in February 2010, and a March 2010 rating decision proposed a reduction in the rating from 30 percent to 20 percent. As will be discussed, the disability rating was ultimately reduced to 20 percent. The Veteran contends that the disability has not improved and asserts that he was entitled to maintain at least a 30 percent rating. In this case, the Veteran testified that he never received notice that they were going to reduce his left clavicle and testified that it was reduced without evaluation or a hearing. Although the Veteran asserted that he never received notice of the proposed reduction, the record reflects that the March 2010 rating decision proposing the reduction, notifying him of a hearing and advising him of the right to submit evidence was sent to his address of record. See e.g. Woods v. Gober, 14 Vet. App. 214, 220 (2000) (noting there is a presumption of regularity that attaches to actions of public officials.). There is no indication the letter was returned as undeliverable. Furthermore, the Veteran responded to that letter in April 2010 and submitted documents to support his argument that his condition had not improved and should remain at 30 percent. As such, the record clearly establishes that the RO complied with the directives of 38 C.F.R. § 3.105. Concerning the provisions of 38 C.F.R. § 3.344(c), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. In this case, the RO did not cite this provision in the rating decision or Statement of the Case. The Board notes, however, that a 30 percent rating was in effect prior to the temporary total rating. A temporary total rating reflects a temporary increase in disability due to surgery. The fact that a 100 percent rating was in effect for a brief period does not reset the clock for purposes of 38 C.F.R. § 3.344(c). The fact remains that there is no period since February 19, 2004 during which a rating less than 30 percent was assigned. Thus, at least a 30 percent rating has been in effect since February 19, 2004, and the provisions of 38 C.F.R. § 3.344 apply. Based on its review of the record, the Board finds that the reduction was not proper because the provisions of 38 C.F.R. § 3.344(a) and (b) are not fully considered. In the rating decision, the RO citing to findings of the February 2010 VA examination noted that there was flexion from 0 to 140 degrees with pain and abduction from 0 to 140 degrees with pain. The RO noted that the examiner estimated there would be an additional 60 degrees loss of flexion and 60 degrees loss of abduction with acute flares and repetitive motion. Based upon these findings, the RO concluded that limitation of arm motion to 25 degrees from the side had not been demonstrated. Significantly, the RO never mentioned the provisions of 38 C.F.R. § 3.344 or evaluated whether the February 2010 VA examination was as full and complete as prior examinations that served as the basis for the grant. Brown v Brown, 5 Vet. App. 413. 420 (1993) (holding that rating reduction was void ab initio where there was no discussion of whether the examination that served as the basis for the reduction was as full and complete as the examination that served as the basis for the grant). Furthermore, on review by the Board, the February 2010 examination report does not show that the examiner had reviewed the claims folder. Rather, the examiner specifically indicated that he did not have the claims folder. VA is required to conduct an accurate and descriptive examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the Veteran's disability. The examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Significantly, the February 2004 VA examination that served as the basis for the grant of the 30 percent evaluation did review the entire claims folder. In examining the findings of the February 2010 examination along with the entire record, the Board finds that material improvement that would be maintained under the ordinary conditions of life was not addressed by the RO. At the time of the March 2004 rating decision that initially increased the rating to 30 percent, the Veteran had a February 2004 VA examination that reflected complaints of daily pain, worse with strenuous activity. He reported having severe flare-ups twice a week resulting in him missing work. Clinical examination demonstrated forward flexion of the left shoulder to 70 degrees, abduction limited to 40 degrees, external rotation to 20 degrees and internal rotation to 10 degrees. The examiner noted that with acute flare-ups of pain there was 50 percent less range of motion. Significantly, the March 2004 rating decision granting the increase indicated that although the evidence did not show abduction limited to 25 degrees from the side it showed abduction between 90 degrees and 25 degrees and reasonable doubt was resolved in the Veteran's favor. The February 2010 VA examination noted that the Veteran had a subacromial decompression and Mumford procedure in October 2009. He complained of daily pain with pain rated 5/10 worse with sleeping on the shoulder, doing physical therapy activities, lifting, pulling or working overhead. He complained of pain and stiffness and some weakness, but did not report deformity, instability, giving way, locking, effusion, or episodes of dislocation or subluxation. He had some swelling but no redness heat or tenderness. He treated with medication. He had flare ups 2 times a week with pain increasing to 7 and these occurred with physical activities. It affected his ability to use his left arm, and he had to use a sling. Clinical examination reflected the following ranges of motion after 3 repetitions: flexion from 0 to 140 degrees with pain starting at 100 degrees, abduction from 0 to 140 degrees with pain beginning at 90 degrees, extension to 0 degrees with pain, internal rotation from 0 to 90 degrees with pain, external rotation from 0 to 10 degrees with pain and adduction from 0 to 80 degrees with pain. There was tenderness over the acromioclavicular bursa and bicipital tendon grove. There was no crepitus. The examiner further indicated that with acute flares and repetitive motion, he estimated that the Veteran would have an additional 60 degrees loss of flexion, abduction, 80 degrees loss of external rotation but explained the exact degrees were not clinically possible. The functional limitation after repetitive use would mostly be manifested by pain. Other VA and private treatment records after the October 2009 surgery reflect flexion ranging from 45 degrees to 170 degrees, abduction ranging from 42 degrees to 175 degrees and extension ranging from 15 degrees to 45 degrees. See November 2009, January 2010, February 2010, March 2010, May 2010 VA outpatient treatment records. The Veteran also had his treating VA physician complete a Disability Benefits Questionnaire of the left shoulder in September 2012. This record noted flare-ups that impacted the function of the shoulder. Range of motion testing reflected flexion to 80 degrees with pain beginning at 65 degrees, abduction to 60 degrees with painful motion beginning at 55 degrees. Repetitive testing was performed and indicated no changes in the flexion. Functional loss was described as less movement than normal, weakened movement, excess fatigability, incoordination, pain, swelling deformity and atrophy or disuse. There was also tenderness and guarding of the shoulder. These findings post-surgery are similar to those reported at the time of the VA examination in March 2004 when the increase to 30 percent was granted. While some of the VA treatment records note range of motion findings that appears to far exceed that warranting a 30 percent evaluation, the Board notes that these records do not specifically test for or explain the result of pain and flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). While the flexion and abduction ranges of motion generally were not limited to 25 degrees to the side, at the time the RO granted the increased evaluation to 30 percent, the rating decision noted that the findings at that time exceeded motion limited to 25 degrees from the side but granted the claim based upon the benefit of the doubt. Here, prior to and after the surgery, the Veteran has described pain with severe flare-ups about twice a week and demonstrated some limited motion that fluctuated over time. Additionally, the record reflects that post-surgery the left shoulder continued to limit the Veteran's functioning ultimately resulting in him being declared medically disabled. Faust v. West, 13 Vet. App. 342 (2000) (reflecting that VA is not limited to medical indicators of improvement but may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment). In sum, because the RO did not follow the provisions of 38 C.F.R. § 3.344 and because there is no basis to support a finding that the service-connected disability had undergone material improvement under the ordinary conditions of life, the reduction in rating was improper. ORDER The reduction of the 30 percent rating assigned for the service-connected left clavicle fracture with left rotator cuff syndrome is void by operation of law. REMAND A review of the record reflects that further development is warranted. The Veteran seeks a total disability rating based on individual unemployability due to service-connected disabilities. In this regard, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service- connected disability shall be rated totally disabled. If the schedular rating is less than total, a total disability evaluation can be based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16. Nevertheless, it is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards are to refer to the Director of the Compensation and Pension Service (C&P) for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). In this case, the Veteran's only service connected disability is the left clavicle fracture with left rotator cuff syndrome, evaluated as 30 percent disabling. Accordingly, the only way to obtain TDIU rating would be on an extraschedular basis. The evidence of record includes conflicting findings concerning the impact of the Veteran's left clavicle fracture on his ability to work. A recent September 2012 DBQ suggested the Veteran's limitation was lifting more than 2 pounds and marked motion reduction. The records from OPM suggest that the Veteran was disabled for his prior position as group leader, labor custodian and unable to work because of the left clavicle fracture. While these clearly indicate the Veteran was precluded from his prior position, the record is unclear as to whether the Veteran was unable to secure or maintain any form of substantially gainful employment. It is well settled that, in its decisions, the Board may not rely upon its own unsubstantiated medical opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, without further clarification, the Board is without medical expertise to determine if the Veteran's service-connected disabilities render him unemployable and a social and industrial survey should be obtained. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should have the Veteran scheduled for a Social and Industrial Survey or similar evaluation to ascertain if the aggregate effects of the Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment in light of his previous work history as a group leader, labor custodian. A clear rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Thereafter, the Veteran's claim should be reviewed and any necessary development should be undertaken, to include forwarding the Veteran's claim to the Director of VA's Compensation Service or Under Secretary for Benefits for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16(b). 3. After completing all indicated development, the RO readjudicate the claim for a TDIU rating in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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. 2013). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs