Citation Nr: 1504175	
Decision Date: 01/29/15    Archive Date: 02/09/15

DOCKET NO.  08-33 336	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for tremors.  

2.  Entitlement to service connection for lesions in the left lung.

3.  Entitlement to service connection for lesions on the seventh left rib.

4.  Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder.

5.  Entitlement to an initial rating in excess of 10 percent for cardiac dysrhythmia.

6.  Entitlement to a separate compensable rating for hypertension.

7.  Whether the reduction in rating for diabetes mellitus from 40 percent to 20 percent, from October 31, 2003, to November 17, 2008, was proper.

8.  Whether the reduction in rating for peripheral neuropathy of the right lower extremity from 20 percent to 10 percent, from December 16, 2003, to September 20, 2009, was proper.

9.  Whether the reduction in rating for a right knee disability from 20 percent to 10 percent, effective November 1, 2007, was proper.

10.  Whether the discontinuance of a total disability rating based on individual unemployability, from December 16, 2003, to October 14, 2007, was proper.

11.  Whether the discontinuance of Dependents' Educational Assistance, from April 6, 2005, to October 14, 2007, was proper.


REPRESENTATION

Veteran represented by:	Kim Krummeck, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel


INTRODUCTION

The Veteran had active service from October 1968 to May 1971.

This appeal comes to the Board of Veterans' Appeals (Board) from August 2007 and December 2008 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  In September 2013, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO.  The record was held open for 90 days following the hearing to provide additional time to submit evidence.  However, no records have been received.  

In an August 2007 rating decision, the RO in Seattle, Washington, reduced the ratings for diabetes mellitus from 40 percent to 20 percent, effective October 31, 2003; for peripheral neuropathy of the right lower extremity from 20 percent to 10 percent, effective December 16, 2003; and for a right knee disability from 20 percent to 10 percent, effective November 1, 2007; and discontinued a total disability rating based on individual unemployability (TDIU), effective December 16, 2003, and Dependents' Educational Assistance (DEA), effective April 6, 2005.

In the December 2008 rating decision, the RO in Louisville, Kentucky, granted service connection for posttraumatic stress disorder (PTSD) and assigned a 70 percent rating, effective October 15, 2007; granted service connection for cardiac dysrhythmia and assigned a 10 percent rating, effective October 15, 2007; granted service connection for hypertension and assigned a 0 percent rating as a complication of diabetes mellitus, effective August 31, 2007; and denied service connection for lesions in the left lung and lesions on the seventh left rib; and determined that new and material evidence had not been received to reopen a previously denied claim for service connection for tremors.  

The Board notes that a claim for service connection for tremors was previously denied in a May 1997 rating decision.  That decision has become final.  However, an April 2005 rating decision granted service connection for peripheral neuropathy of the upper extremities and the record suggests that the tremors may be a symptom of or secondary to the peripheral neuropathy.  The grant of service connection for peripheral neuropathy of the upper extremities has created a new legal basis for entitlement to service connection and thus the current claim is separate and distinct from the previous, finally denied claim.  Therefore, the claim may be adjudicated de novo and new and material evidence is not required.  Spencer v. Brown, 4 Vet. App. 283 (1993).

In a June 2010 rating decision, the RO increased the ratings for diabetes mellitus to 40 percent, effective November 18, 2008, and peripheral neuropathy of the right lower extremity to 20 percent, effective September 21, 2009; and granted a TDIU and DEA, both effective October 15, 2007.  Thus, the reduction issues are only for the period during which the reduction remained in effect.  In a September 2011 rating decision, the RO granted earlier effective dates for the awards of service connection for diabetes mellitus and peripheral neuropathy of the right lower extremity.  However, that decision did not change the effective dates of the reductions in rating for those disabilities.

The issues of entitlement to service connection for tremors, an initial rating in excess of 70 percent for PTSD, an initial rating in excess of 10 percent for cardiac dysrhythmia, and a separate compensable rating for hypertension are REMANDED to the Agency of Original Jurisdiction.  


FINDINGS OF FACT

1.  The preponderance of the evidence is against a finding that the Veteran currently has a disability of the left lung.

2.  The preponderance of the evidence is against a finding that the Veteran currently has a disability of the seventh left rib.

3.  The evidence does not show that it is more likely that the Veteran made false or misleading statements regarding the severity of his diabetes mellitus or peripheral neuropathy of the right lower extremity at the time of the February 2004 rating decision that increased the ratings for those disabilities.

4.  With respect to the reduction in rating for a right knee disability, the August 2008 rating decision, September 2008 statement of the case, and November 2010 and May 2012 supplemental statements of the case show that the RO did not properly apply the provisions of 38 C.F.R. § 3.344.  

5.  The evidence of record was not clear and convincing that the Veteran was actually employable in a substantially gainful occupation at the time TDIU was discontinued on December 16, 2003.

6.  From April 6, 2005, to October 14, 2007, the Veteran had a total disability permanent in nature resulting from a service-connected disability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for lesions in the left lung are not met.  38 C.F.R. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  The criteria for service connection for lesions on the seventh left rib are not met.  38 C.F.R. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).

3.  The reduction in rating for diabetes mellitus from 40 percent to 20 percent was not proper and is void, and therefore a 40 percent rating, from October 31, 2003, to November 17, 2008, is restored.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.500 (2014).

4.  The reduction in rating for peripheral neuropathy of the right lower extremity from 20 percent to 10 percent was not proper and is void, and therefore a 20 percent rating, from December 16, 2003, to September 20, 2009, is restored.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344 (2014).

5.  The reduction in rating for a right knee disability from 20 percent to 10 percent, effective November 1, 2007, was not proper and is void and therefore a 20 percent rating is restored.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344 (2014).

6.  The discontinuance of a TDIU was not proper and is void, and therefore a TDIU rating, from December 16, 2003, to October 14, 2007, is restored.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.340, 3.341, 3.343, 4.16 (2014).

7.  The discontinuance of DEA was not proper and is void, and therefore eligibility for DEA, from April 6, 2005, to October 14, 2007, is restored.  38 U.S.C.A. § 3501, 3510, 3512 (West 2014); 38 C.F.R. §§ 3.807, 21.3021, 21.3030, 21.3040, 21.3041 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014).  Proper notice must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability.  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

With respect to the claims for service connection, neither the Veteran nor representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Veteran was notified in an August 2008 letter of the criteria for establishing service connection, the evidence required, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  That letter addressed all notice elements and predated the initial adjudication by the RO in December 2008.  

VA also has a duty to assist a claimant in the development of a claim.  That duty includes assisting in obtaining service medical records and pertinent treatment records and providing an examination or obtaining an opinion when necessary.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014).  

In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service medical records, and post-service reports of VA and private treatment and examination.  The Veteran's statements in support of the claims are of record.  The Board has carefully reviewed those statements and concludes that no available outstanding evidence has been identified.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims.  

Although an examination or opinion was not obtained in connection with either claim for service connection, the Board finds that VA was not under an obligation to provide one, as that is not necessary to make a decision on the claims, as will be discussed below. 

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014). 

In this case, the record is absent any evidence of the claimed disorders in service or for many years thereafter.  Aside from the Veteran's bare references to having problems since service, there is no evidence showing a nexus between the claimed disorders and service.  Moreover, as will be discussed in detail below, any assertion as to continuity of symptomatology is deemed not credible.  There is no reasonable possibility that a medical opinion would aid in substantiating the Veteran's claims for service connection since it could not provide evidence of a past event.  The Board finds that no further notice or assistance is required to fulfill VA's duty to assist.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014).  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2014).  

Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

While VA medical records show that the Veteran has lesions in the left lung and on the seventh left rib, they do not show that he has been diagnosed with a lung or rib disorder.  A January 2011 CT scan showed a few calcified granulomas in the lungs but no suspicious nodule, mass, or consolidation.  May 2011 x-rays showed no acute cardiopulmonary process.  A December 2011 treatment note shows complaints of developing a dry cough that the Veteran attributed to his hypertension medication.  As of June 2012, the only pertinent entries in the problem list are of a cough and lung granuloma.  

During the Board hearing, the Veteran indicated that he had a cough that may be due to the lung lesions.  He did not have any symptoms due to the rib lesions.  He has not yet been diagnosed with a lung or rib disorder, and he was not receiving any treatment for either condition.

Considering that evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran currently has a disorder of the left lung or seventh left rib within the meaning of VA laws and regulations.  While there are abnormalities on CT scans and x-rays, there is simply no diagnosis of either a lung or rib disorder.  Like an abnormal laboratory finding, abnormalities found on diagnostic tests such as CT scans and x-rays that do not result in objective symptomatology do not constitute a disability for VA purposes, as there is no industrial impairment.  38 C.F.R. §§ 4.1, 4.10 (2014); 61 Fed. Reg. 20,440, 20,445 (1996) (diagnoses such as hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities, and are not appropriate entities for the rating schedule).  There is no medical evidence of record which has diagnosed any current disability as a result of those laboratory findings.  In the absence of a showing a current disability, service connection cannot be granted.

The Board notes the Veteran's testimony that he has a cough that may be related to the lung lesions.  However, during the receipt of VA treatment, he related the cough to hypertension medication.  Regardless, he is not competent to address etiology of a claimed cough as that medical nexus is not obvious merely through lay observation.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Moreover, the record does not contain a diagnosis of either a lung or rib disorder, and the Veteran has testified to that.  

To the extent that the Veteran contends that he has a current disability, as a lay person, he is not competent to offer an opinion on a matter clearly requiring medical expertise, such as diagnosing himself with a lung or rib disorder.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In the absence of evidence of a current disability, service connection for lesions in the left lung and lesions on the seventh left rib is not warranted.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).

In the event the lesions in the left lung or on the seventh left rib begin to affect respiratory or musculoskeletal function or cause some other symptomatology, the Veteran can submit a new claim for service connection.  However, at this time, in the absence of a current disability, service connection may not be granted.

In conclusion, service connection for lesions in the left lung and lesions on the seventh left rib is not warranted.  As the preponderance of the evidence is against each claim, service connection must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Rating Reduction

A Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C.A. § 1155 (West 2014).  

Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error.  Where evidence establishes such error, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision.  Generally, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply.  38 C.F.R. § 3.105(a) (2014).  

Where the reduction in rating of a service-connected disability or employability status is considered warranted and the lower 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.  The Veteran will be notified at the latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  If additional evidence is not received within that period, 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 of the final rating action expires.  38 C.F.R. § 3.105(e) (2014). 

However, the above provisions do not apply where an award was based on an act of commission or omission by the Veteran, or with the Veteran's knowledge.  In those cases,.  38 C.F.R. § 3.105 (2014).  The effective date for a reduction in rating due to an error on the part of the Veteran to be the effective date of the initial award.  38 C.F.R. § 3.500(b) (2014).

In cases where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected.  Kitchens v. Brown, 7 Vet. App. 320 (1995).  A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement.  38 C.F.R. § 3.344(a) (2014).   The five year period is calculated from the effective date of the rating to the effective date of the reduction.  Brown v. Brown, 5 Vet. App. 413 (1993).  If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect.  38 C.F.R. § 3.344(b) (2014).  

The above requirements do not apply to ratings that have not continued for long periods of five years or more at the same level or to disabilities which have not become stabilized and are likely to improve.  Rather, in such cases, reexaminations disclosing improvement, physical or mental, in those disabilities will warrant a rating reduction.  38 C.F.R. § 3.344(c) (2014).  

When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288 (1999).

Rating Reduction for Diabetes Mellitus and Peripheral Neuropathy of the Right Lower Extremity

The Veteran's diabetes mellitus and peripheral neuropathy of the right lower extremity appear to have been properly reduced pursuant to the requirements of 38 C.F.R. § 3.105.  The RO prepared a rating decision proposing the reductions in May 2007, setting forth the rationale for the proposed reductions.  The RO then issued a rating decision in August 2007 reducing the ratings, in which the RO referred to the reasons and bases in the May 2007 rating decision that proposed the reductions.  As the RO found that the Veteran provided false or misleading information regarding the severity of the disabilities, the RO set the effective dates retroactively based on the provisions of 38 C.F.R. § 3.500(k) regarding fraud.  

In a February 2004 rating decision, the RO increased the rating for diabetes mellitus to 40 percent, effective October 31, 2003.  The RO observed that a 40 percent rating is warranted if insulin, restricted diet, and regulation of activities are required.  38 C.F.R. § 4.119, Diagnostic Code 7913 (2014).  The RO noted that a September 2003 VA examination revealed no history of diabetic ketoacidosis and no evidence of regulation of activities.  However, the RO noted that an October 31, 2003, private treatment record showed complaints of severe pain in the hands and feet that was limiting the Veteran's ability to perform activities such as walking and working out at the gym.  While the RO did not discuss it, the RO cited as evidence a February 2004 statement from the Veteran in which he indicated that his diabetes mellitus required the regulation of activities.

The February 2004 rating decision also increased the rating for peripheral neuropathy of the right lower extremity to 20 percent, effective December 16, 2003.  The RO observed that a 20 percent rating is warranted for incomplete paralysis of foot movements which is moderate.  38 C.F.R. § 4.124a, Diagnostic Code 8521 (2014).  The RO noted that the September 2003 VA examination revealed decreased sensation in the feet and some foot pain consistent with diabetic neuropathy, and a December 16, 2003, private treatment record revealed recent treatment in the emergency department for severe neuropathy of the right leg with current examination showing numbness in the right leg described as a deep pain.

In an August 2007 rating decision, the RO reduced the rating for the Veteran's diabetes mellitus from 40 percent to 20 percent, effective October 31, 2003, the date of the prior award of the 40 percent rating.  The RO stated that the February 2004 rating decision increased the rating based on the Veteran's self-report of extreme limitation of activities, even to include walking, due to complications of diabetes.  The RO stated that the increase was explained as granted from October 31, 2003, based on treatment record showing such subjective complaints.  The RO noted that such reports continued for a time, including on May 20, 2004, when the Veteran reported the need for a cane due to loss of sensation in the feet that was so severe that he did not know where his feet were in relation to the ground.  The RO noted that the Veteran reported returning to work on a part-time basis and findings since then had shown considerable improvement, including during February 2005 and July 2006 VA examinations.  The RO then stated that the rating of diabetes mellitus would be reduced to 20 percent because the evidence available was consistent with the criteria for a 20 percent rating.  

The August 2007 rating decision also reduced the rating for peripheral neuropathy of the right lower extremity from 20 percent to 10 percent, effective December 16, 2003.  The RO stated that, for reasons identical to those provided for the diabetes mellitus, the reduction would be effective from the date of the prior increase.  The RO then incorrectly cited the rating criteria for peripheral neuropathy of the upper extremity.

In the September 2008 statement of the case, the RO reiterated that the prior 40 percent rating for diabetes mellitus was based on the Veteran's self-report of restriction of activities and that the objective evidence did not support that finding.  The RO stated that the reduction in rating was made based on the objective clinical findings of the July 2006 VA examination.  The RO noted that current VA medical records did not support a restriction of activities.  With respect to peripheral neuropathy of the right lower extremity, the RO stated that the July 2006 VA examination findings no longer warranted the previously assigned 20 percent rating and that a recent VA medical record only noted decreased sensation.  The RO provided the correct rating criteria for peripheral neuropathy of the right lower extremity.  The RO then cited 38 C.F.R. § 3.105(e).

In the November 2010 supplemental statement of the case, the RO reiterated the reasons and bases for the reduction in rating for diabetes mellitus provided in the statement of the case.  The RO stated that no additional evidence had been received for the peripheral neuropathy of the right lower extremity and provided no further consideration.  The RO then cited 38 C.F.R. §§ 3.105(a) and 3.344.  

In the May 2012 supplemental statement of the case, the RO stated that, while additional medical records had been received, they did not warrant restoration of the rating for either disability.

Considering that evidence, the rating decision that reduced the rating for diabetes mellitus and peripheral neuropathy of the right lower extremity was based on what were found to be false or misleading statements made by the Veteran regarding the severity of his disabilities at the time of the February 2004 rating decision that awarded the prior increases.  The reasons and bases provided in the statement of the case continued to indicate that the reductions were based on false or misleading statements made by the Veteran regarding the severity of his disabilities but then cited 38 C.F.R. § 3.105(e), which indicated that the reductions were due to improvement in disability.  The November 2010 supplemental statement of the case reiterated the reasons and bases provided in the statement of the case but then cited 38 C.F.R. §§ 3.105(a) and 3.344, which indicated that the reductions were due to administrative error or error in judgment.  Thus, while the reasons and bases indicate that the reductions were based on false or misleading statements made by the Veteran regarding the severity of his disabilities, the cited regulations indicate that the reductions were due to improvement in disability, or administrative error or error in judgment.  

The Board will begin by addressing whether the Veteran made false or misleading statements regarding the severity of diabetes mellitus or peripheral neuropathy of the right lower extremity at the time of the February 2004 rating decision that increased the ratings for the disabilities to 40 percent and 20 percent respectively.  As noted in the February 2004 rating decision, an October 31, 2003, private treatment record showed complaints of severe pain in the hands and feet that was limiting the Veteran's ability to perform activities such as walking and working out at the gym and a February 2004 statement from the Veteran indicated that his diabetes mellitus required the regulation of activities.  

As for the complaints in the October 2003 treatment record, they do not seem to be false or misleading statements made by the Veteran but rather subjective symptoms regarding peripheral neuropathy.  They simply indicate that his peripheral neuropathy of the right lower extremity limited the amount of walking and exercising he could engage in due to the pain.  

As for the February 2004 statement, it seems to represent the Veteran's belief that his diabetes mellitus required the "regulation of activities."  Until the May 2007 rating decision that proposed the reduction, the Veteran had not been informed of the meaning of "regulation of activities" under VA regulations.  The Board agrees with the RO that the objective evidence of record at the time of the increase to 40 percent did not show that his diabetes mellitus required the regulation of activities, as evidenced by the September 2003 VA examination report in which the examiner indicated there was no evidence of a need for the regulation of activities.  In that regard, the Board infers that the Veteran must have stated during that examination that his diabetes mellitus did not require the "regulation of activities," which is defined as the avoidance of strenuous occupational and recreational activities.  In fact, the Veteran stated during that examination that he was able to walk on a treadmill.  Thus, his reference to "regulation of activities" in the February 2004 statement does not seem to be false or misleading but rather a misunderstanding of the meaning of the term, which had not been explained to him.

Accordingly, the Board finds that the Veteran did not intentionally make false or misleading statements regarding the severity of diabetes mellitus or peripheral neuropathy of the right lower extremity at the time of the February 2004 rating decision that increased the rating for the disabilities.  Thus, the reductions in ratings for diabetes mellitus and peripheral neuropathy of the right lower extremity based on any such false or misleading statements were not warranted.  

With respect to whether the reductions in ratings were otherwise proper, as the record stands, the effective dates for the reductions were based on the provisions of 38 C.F.R. § 3.500(k) regarding fraud.  However, the Board finds that the preponderance of the evidence is against a finding of fraud in this case.  Thus, the provisions of 38 C.F.R. § 3.500(k) do not apply.  With no other evidence of an act of commission or omission by the Veteran, 38 C.F.R. § 3.500(b) does not apply.  Thus, no regulation applicable to this case would have allowed for the effective dates for the reductions in ratings to be the effective dates of the initial awards of increase.  Lastly, if the RO meant to reduce the ratings due to improvement in disability, or administrative error or error in judgment, given the procedural history, the Veteran did not receive proper notice and the benefit of other measures under 38 C.F.R. § 3.105 for reductions based on those reasons.  The Board emphasizes that failure to properly apply the applicable regulations renders a rating decision reduction void ab initio.  Such an omission is error and not in accordance with the law.  Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  

Accordingly, the reductions in ratings for diabetes mellitus and peripheral neuropathy of the right lower extremity were not proper and are void ab initio.  Thus, the 40 percent rating for diabetes mellitus must be restored from October 31, 2003, to November 17, 2008, and the 20 percent rating for peripheral neuropathy of the right lower extremity must be restored from December 16, 2003, to September 20, 2009.  Because of the favorable outcomes in this case, the Board need not address, from an evidentiary standpoint, the actual merits of the reductions.



Rating Reduction for a Right Knee Disability

The Veteran's right knee disability was properly reduced pursuant to the requirements of 38 C.F.R. § 3.105(e).  The RO prepared a rating decision proposing the reduction in May 2007 setting forth the rationale for the proposed reduction.  The RO then issued a rating decision in August 2007 reducing the rating.  Thus, the Veteran received proper notice and the benefit of other measures under 38 C.F.R. § 3.105(e).

In the August 2007 rating decision, the RO reduced the rating of the right knee disability from 20 percent to 10 percent effective November 1, 2007.   The 20 percent rating had been assigned by the RO in an April 2004 rating decision and was effective from March 21, 2001.  Thus, the rating had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344 apply.  

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement.  Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  However, care must be taken to ensure that a change in an examiner's evaluation demonstrates an actual change in the condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history.  

The Veteran's right knee disability has been rated under Diagnostic Code 5260.  38 C.F.R. § 4.71a (2014).  Under that diagnostic code for limitation of flexion of the leg, flexion limited to 45 degrees warrants a 10 percent rating and flexion limited to 30 degrees warrants a 20 percent rating.  The April 2004 rating decision noted that flexion limited to 30 degrees was not shown, but assigned a 10 percent rating for pain on motion and a 10 percent rating for muscle spasms and history of flare-ups needing a cane or brace.

The RO reduced the rating of the Veteran's right knee disability based on February 2005 and July 2006 VA examinations that found normal extension both times and flexion limited to at most 110 degrees and 108 degrees respectively.  The 20 percent rating for the right knee disability had been in effect for more than five years and thus the provisions of 38 C.F.R. § 3.344 apply.  However, the August 2008 rating decision, September 2008 statement of the case, and November 2010 and May 2012 supplemental statements of the case show that the RO did not properly apply the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions.  The RO did not address whether an improvement in disability actually occurred, or whether any improvement demonstrated an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  38 C.F.R. §§ 4.1, 4.2, 4.13 (2014); Brown v. Brown, 5 Vet. App. 413 (1993); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

The Board emphasizes that failure to properly apply the provisions of 38 C.F.R. § 3.344 renders a rating decision void ab initio.  Such an omission is error and not in accordance with the law.  Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  Accordingly, the reduction in rating of the right knee disability from 20 percent to 10 percent was not proper and is void ab initio.  Thus, the 20 percent rating under Diagnostic Code 5260 must be restored effective November 1, 2007.  Because the outcome warranted in view of this procedural defect, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction.

Discontinuance of a TDIU

Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2014). 

For VA purposes, the following are considered to comprise a single disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, such as orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (2014). 

In addition, a TDIU rating may be awarded if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b) (2014). 

Marginal employment is not considered to be substantially gainful employment.  Rather, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Such employment may also be held to exist, on a facts-found basis, in instances in which a Veteran is employed in a protected environment, such as a family business or sheltered workshop, and his earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. § 4.16(a) (2014). 

As a prerequisite for termination of a total disability rating, VA regulations direct that actual employability must be established by clear and convincing evidence.  Moreover, if a Veteran begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, his rating may not be reduced solely on the basis of having secured and followed that substantially gainful occupation unless the Veteran maintains that occupation for a period of 12 consecutive months.  38 C.F.R. § 3.343(c)(2) (2014). 

Additionally, neither participation in, nor the receipt of remuneration as a result of participation in, a therapeutic or rehabilitation activity shall be considered evidence of employability.  38 C.F.R. § 3.343(c) (2014).

The Veteran claims the discontinuance of a TDIU rating from December 16, 2003, to October 14, 2007, was improper.  Specifically, he claims he has been unable to work due to service-connected disabilities since December 16, 2003.

At the time of the April 2005 rating decision that granted a TDIU, the Veteran was in receipt of a 40 percent rating for diabetes mellitus, 20 percent ratings for a right knee disability and peripheral neuropathy of the right lower extremity, and 10 percent ratings for peripheral neuropathy of the left lower, right upper, and left upper extremities.  His combined rating was 80 percent.  Five of his service-connected disabilities shared a common etiology and thus comprised a single disability ratable at 70 percent.  38 C.F.R. § 4.16 (2014).  On that basis, the RO found that the Veteran met the schedular criteria for a TDIU.  38 C.F.R. § 4.16(a) (2014).  The RO noted that he could not maintain his license as a commercial long haul trucker because of his insulin use, his peripheral neuropathy of the lower extremities reduced his mobility and sensation, and his right knee disability reduced his ability to stand for any length of time and would prevent employment in a job requiring repetitive movement.  The RO then found that it was as likely as not that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. 

The pertinent evidence of record at the time of the April 2005 rating decision included a September 2003 VA diabetes mellitus examination report showing pain and decreased sensation in the feet; a September 2003 VA joints examination report showing range of motion of the right knee from 0 to 100 degrees with significant pain, with the examiner noting a loss of 40 degrees or more during flare-ups, and guarding and spasm of the quadriceps and hamstrings; an October 31, 2003, private treatment record showing complaints of severe pain in the hands and feet that was limiting the Veteran's ability to perform activities such as walking and working out at the gym; a December 16, 2003, private treatment record showing recent treatment in the emergency department for severe neuropathy of the right leg with current examination showing numbness in the right leg described as a deep pain; and a February 2004 statement from the Veteran in which he indicated that his diabetes mellitus required the regulation of activities.

The Veteran's TDIU appears to have been properly discontinued pursuant to the requirements of 38 C.F.R. § 3.105.  The RO prepared a rating decision proposing the discontinuance in May 2007 setting forth the rationale for the proposed discontinuance.  The RO then issued a rating decision in August 2007 discontinuing the TDIU, in which the RO referred to the reasons and bases in the May 2007 rating decision.  As the RO found that the Veteran provided false or misleading statements regarding the severity of his disabilities and employment status, the RO set the effective date based on the provisions of 38 C.F.R. § 3.500(k) regarding fraud.  

In the August 2007 rating decision, the RO discontinued the Veteran's TDIU rating finding that his reports at the time of the rating decision granting a TDIU were false or misleading, attempting to show severe limitations of function that were not borne out by the evidence now of record.  The RO noted that on a June 2006 employment questionnaire the Veteran reported that since November 2004 he had been teaching his son the moving business, working five to nine hours per week, earning up to $300.00 per month.  The RO noted that a May 2004 VA treatment record appeared to show that he was still working as a truck driver and a February 2004 letter from the Veteran to a state probation and parole office reflected that he was working on the west coast.  However, that letter was of record at the time of the April 2005 rating decision that granted a TDIU.  The RO noted that evidence provided by the VA Office of Inspector General showed that the Veteran was working as an independent mover and a video showed the Veteran with no apparent limitation of function, with full use of his extremities.  The video showed the Veteran loading furniture onto a truck.  Although not cited by the RO, May 2006 correspondence from the VA Office of Inspector General indicated that the Veteran had worked as an independent contract moving service and June 2006 correspondence showed that after further talks with the VA Office of Inspector General it was determined that a VA examination would be scheduled to ascertain the severity of the Veteran's disabilities.  

A July 2006 VA diabetes mellitus examination report shows the examiner's impression that the Veteran did not present physically as someone who could no longer work, with a steady gait, intact sensation in the toes, and minimal neuropathy on nerve conduction studies.  The examiner noted that the Veteran would be unable to run heavy equipment because of a slow reaction time due to the numbness from the peripheral neuropathy.  The examiner observed that a video showed the Veteran jumping up on the back of a truck and moving heavy objects up the ramp.  

A July 2006 VA joints examination report shows the examiner's impression that the Veteran would not be precluded from any type of work but physical, laborious jobs would be sporadically problematic.  When informed of this, the Veteran stated that he worked two to four hours a week with a moving company.  The examiner observed that a video showed the Veteran lifting, bending, carrying, and twisting.  The examiner concluded that the Veteran's right knee disability would not preclude sedentary employment.

In a June 2008 letter, the Veteran's son stated from 2003 to 2005 the Veteran started a moving company for him as he was just divorced and needed a job.  He stated he hired a few men and with the Veteran's experience in the moving business got the business going.  He stated the Veteran helped out on a few jobs for one to two hours when able and would be in pain for the next three to four days.  He stated he did not pay the Veteran but did buy lunch and pay for gas.  He stated the Veteran cashed a few checks for him because he did not have a bank account.

In March 2010 correspondence, the Veteran indicated that, except for helping his son with a moving business from January 2006 to June 2006, he did not work from the end of 2003 to 2009.

Tax return forms and wage and tax statements for the years 2004 to 2007 show that all income was earned by the Veteran's wife.

During the September 2013 Board hearing, the Veteran indicated that he had not been able to work full-time since the mid-1980s due to service-connected diabetes mellitus and peripheral neuropathy.

Considering the evidence above, the Board finds that the record does not contain clear and convincing evidence that the Veteran was actually employable in a substantially gainful occupation at the time TDIU was discontinued on December 16, 2003.  

As found above with respect to the reductions in ratings for the Veteran's diabetes mellitus and peripheral neuropathy of the right lower extremity, the Board finds that the preponderance of the evidence does not show that the Veteran intentionally made false or misleading statements regarding the severity of his disabilities.  That finding counters the RO's underlying basis for discontinuing TDIU.

While there is a discrepancy as to whether the Veteran received any money for helping his son with the moving business, the Board observes that the reported earnings of up to $300.00 per month fall below the poverty threshold for that year.  The Veteran also reported working only five to nine hours per week, substantially less than a full 40-hour work week.  Moreover, even if the Veteran were working in that occupation, he did not maintain that occupation for a period of 12 consecutive months, as required by 38 C.F.R. § 3.343(c)(2).  Lastly, his report of helping his son with the moving business explains the video of him loading a truck and there is insufficient evidence of record to show either that he worked in that capacity longer than 12 months, that it was substantially gainful occupation, or that he intentionally made fraudulent statements regarding the level of disability.  

While the May 2004 VA treatment record shows the Veteran was still working as a truck driver, the Board observes that treatment records often carry over outdated information from prior records.  Moreover, even the RO noted that the treatment record "appears to show" that he was still working.  As will be seen below, other evidence, including tax and wage forms, indicates he did not have employment income in 2004.

While the February 2004 letter from the Veteran to a state probation and parole office shows he was working on the west coast, it may merely have been referring to his helping his son.  The letter does not specify the job or whether the job was full-time.  The Board also observes that the letter was of record at the time of the April 2005 rating decision that granted a TDIU, which indicates that the RO did not then consider it to be very probative, or clear and convincing evidence, of his ability to engage in a substantially gainful occupation.  

The record shows that the VA Office of Inspector General initiated an investigation of the Veteran as there was an indication of fraud regarding his ability to work.  However, it was ultimately decided by the VA Office of Inspector General and the RO that a VA examination would be scheduled to ascertain the severity of his disabilities, without evidence of further investigation.

Pursuant to the outcome of the investigation, the Veteran was scheduled for two VA examinations.  One examiner stated that while the Veteran did not present physically as someone who could no longer work, he would be unable to run heavy equipment because of a slow reaction time due to the numbness from the peripheral neuropathy.  A second examiner stated that while the Veteran would not be precluded from any type of work, he would have difficulty with physical, laborious jobs.  While each examiner indicated that the Veteran would not be precluded from any type of work, each examiner also noted restrictions due to the Veteran's service-connected disabilities.  In that regard, the Board observes that the Veteran previously worked as a mover and truck driver, which require physical labor and running heavy equipment.  

Lastly, in the September 2008 statement of the case, the RO advised the Veteran that, for further consideration as to the restoration of his TDIU, he should provide additional evidence regarding his employment and submit his tax returns for the years 2003 to 2007.  The Board observes that action requesting additional information indicates the absence of clear and convincing evidence, as additional evidence was being sought.  Moreover, tax return forms and wage and tax statements for the years 2004 to 2007, when received, show that all income for those years was earned by the Veteran's wife.  

In light of the foregoing, the Board concludes that the discontinuance of the Veteran's TDIU was improper and restoration of TDIU, from December 16, 2003, to October 14, 2007, is warranted.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Discontinuance of DEA

For purposes of educational assistance under Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.  38 U.S.C.A. §§ 3501, 3510, 3512 (West 2014); 38 C.F.R. §§ 3.807, 21.3021, 21.3030, 21.3040, 21.3041 (2014).

As the Board has found that the Veteran was permanently and totally disabled and restored the TDIU rating from December 16, 2003, to October 14, 2007, eligibility to DEA benefits, from April 6, 2005, to October 14, 2007, is also restored.



ORDER

Service connection for lesions in the left lung is denied.

Service connection for lesions on the seventh left rib is denied.

As the reduction in rating for diabetes mellitus from 40 percent to 20 percent was not proper, restoration of the 40 percent rating, from October 31, 2003, to November 17, 2008, is granted.

As the reduction in rating for peripheral neuropathy of the right lower extremity from 20 percent to 10 percent was not proper, restoration of the 20 percent rating, from December 16, 2003, to September 20, 2009, is granted.

As the reduction in rating for a right knee disability from 20 percent to 10 percent was not proper, restoration of the 20 percent rating, effective April 1, 2010, is granted.

As the discontinuance of a TDIU was not proper, restoration of a TDIU, from December 16, 2003, to October 14, 2007, is granted.

As the discontinuance of DEA was not proper, restoration of DEA, from April 6, 2005, to October 14, 2007, is granted.


REMAND

Further development is needed on the remaining claims on appeal.

The Veteran filed a claim for service connection for nerves/shakes in January 1981.  The claim was denied in an April 1981 rating action because he did not report to a scheduled VA examination.  In January 1997 he filed a claim for service connection for tremors.  He also filed a claim for service connection for peripheral neuropathy.  He underwent a VA examination in March 1997 and was diagnosed with a benign essential tremor and peripheral neuropathy.  A May 1997 rating decision denied service connection for both disabilities.  An April 2005 rating decision subsequently granted service connection for peripheral neuropathy of the upper extremities as secondary to diabetes mellitus, for which service connection was granted in a May 2002 rating decision.  Then, in July 2007 the Veteran filed a claim for service connection for a neurological disorder, to include trembling hands.  A December 2008 rating decision denied the claim because new and material evidence had not been received to reopen the previously denied claim.  

As noted in the introduction, the tremors claim will be adjudicated on a de novo basis.  A November 2008 VA peripheral nerves examination lists tremors of the hands as a symptom of the peripheral neuropathy.  However, the examiner did not specifically opine that they were, and the record indicates that the Veteran may have had the tremors prior to the peripheral neuropathy, as indicated by the claim history and testimony during the September 2013 Board hearing of having tremors since 1973.  There is no opinion on whether the tremors of the head, which he reported during the March 1997 VA examination, are related to the peripheral neuropathy.  The Board finds that a VA examination would be helpful in resolving those issues.

With respect to the claim for increased rating PTSD, the record shows that the Veteran underwent a VA examination to ascertain the severity of the disability in January 2015.  As the report of that examination is pertinent to the claim for a higher initial rating for PTSD, remand for the AOJ to review it in the first instance is needed.

With respect to the Veteran's cardiac dysrhythmia and hypertension, he was last examined by VA for those disabilities in November 2008, over seven years ago.  Thus, the last examinations are stale.  Those disabilities may have worsened since the last examinations.  To properly adjudicate the rating claims, current examinations should be scheduled.  

Lastly, any outstanding medical records should be obtained.  The record contains VA treatment notes through June 2012.  Thus, any treatment notes since then should be obtained. 

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any VA treatment records since June 2012.

2.  Then, schedule the Veteran for a VA examination to ascertain the nature and etiology of tremors of the hands and head.  The examiner should review the claims folder and note that review in the report.  A rationale for all opinions should be provided.  The examiner should state whether it is at least as likely as not (50 percent or greater probability) that tremors of the hands are related to the Veteran's active service.  The examiner should also state whether it is at least as likely as not (50 percent or greater probability) that tremors of the hands and head were caused or aggravated (worsened beyond the natural progress of the disorder) by service-connected peripheral neuropathy of the upper and lower extremities.  The examiner should consider the March 1997 VA examination report noting complaints of tremors of the head, the November 2008 VA peripheral nerves examination report listing tremors of the hands as a symptom of the peripheral neuropathy, and the Veteran's testimony during the September 2013 Board hearing of having tremors since 1973.

3.  Schedule the Veteran for a VA examination to ascertain the severity of cardiac dysrhythmia and hypertension.  The examiners should review the claims folder and note that review in the reports.  All necessary tests should be performed.  A rationale for all opinions should be provided.  

4.  Then, readjudicate the claims.  Specific to the PTSD claim, the readjudication should include consideration of the January 2015 VA examination report.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs