Citation Nr: 1512850 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 12-28 937 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for diabetes mellitus; and if so, whether the criteria for service connection are met. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension; and if so, whether the criteria for service connection are met. 3. Entitlement to restoration of a 20 percent rating for residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1, currently evaluated as 10 percent disabling. 4. Entitlement to a disability rating in excess of 60 percent for radiculopathy with partial right foot drop. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1981. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the RO that, in pertinent part, found new and material evidence to reopen, and then denied service connection for diabetes mellitus and for hypertension on the merits; and from a March 2010 decision of the RO that decreased the evaluation for the Veteran's service-connected residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 from 20 percent (effective in February 2009) to 10 percent effective January 19, 2010-a period less than 5 years, and denied a TDIU. The Veteran timely appealed. The requirement of submitting new and material evidence to reopen a claim is a material legal issue the Board is required to address on appeal, despite the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). As such, the issues are captioned as above. In March 2012, the RO denied a disability rating in excess of 60 percent for service-connected radiculopathy with partial right foot drop. This matter had been considered simultaneously with the Veteran's claim on appeal for a TDIU. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his electronic claims file. The reopened claims for service connection for diabetes mellitus and for hypertension, and the claim for entitlement to a TDIU are addressed in the REMAND portion of the decision below; and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an October 1981 rating decision, the RO denied service connection for diabetes mellitus. The Veteran did not appeal within one year of being notified. 2. Evidence associated with the claims file since the October 1981 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus; and raises a reasonable possibility of substantiating the claim. 3. In a November 2002 rating decision, the RO denied service connection for hypertension with heart disease. The Veteran did not appeal within one year of being notified. 4. Evidence associated with the claims file since the November 2002 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension; and raises a reasonable possibility of substantiating the claim. 5. Throughout the rating period, the Veteran's radiculopathy with partial right foot drop has been manifested by motor weakness and sensory deficits of the right lower extremity equivalent to, at most, severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; complete paralysis of the sciatic nerve has not been demonstrated. 6. By a rating decision in October 1981, the RO granted service connection for residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 (formerly, discogenic back pain with sciatica); a disability rating of 20 percent was assigned, effective February 18, 2009. 7. By a rating decision in March 2010, the RO reduced the rating for service-connected residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 to 10 percent-effective January 19, 2010-following a January 2010 VA examination. 8. The March 2010 rating decision was made without consideration of pertinent law and regulations. CONCLUSIONS OF LAW 1. The RO's October 1981 decision denying service connection for diabetes mellitus is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2014). 2. The RO's November 2002 decision denying service connection for hypertension with heart disease is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2014). 3. The evidence received since the RO's October 1981 denial is new and material; and the claim for service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 4. The evidence received since the RO's November 2002 denial is new and material; and the claim for service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 5. The criteria for a disability rating in excess of 60 percent for radiculopathy with partial right foot drop are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2014). 6. Restoration of a 20 percent rating for the Veteran's service-connected residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 is warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.344, 4.71a, Diagnostic Code 5235-5243 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through a March 2009 letter, the RO notified the Veteran of elements of a service connection claim, elements of an increased rating claim, and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claims. In the March 2009 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran for the claims decided on appeal. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims decided on appeal, reports of which are of record and are adequate for rating purposes. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Petition to Reopen Claims for Service Connection VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Under 38 C.F.R. § 3.156(a), "new evidence" is existing evidence not previously submitted; "material evidence" is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Furthermore, new and material evidence is "neither cumulative nor redundant" of evidence of record at the time of the last prior final denial, and must "raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). New evidence will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. Diabetes Mellitus The RO originally denied service connection for diabetes mellitus in October 1981 on the basis that there was no currently confirmed diagnosis of diabetes mellitus, although the Veteran had a diagnosis of mild chemical diabetes mellitus in active service. The evidence of record at the time of the last denial of the claim included the Veteran's service treatment records, an October 1981 VA examination, and statements from the Veteran. Service treatment records reflect that the Veteran was found to have increased fasting blood sugar and two-hour postprandial glucose levels during his retirement examination in February 1981. The impression at that time was mild chemical diabetes (borderline), and the Veteran was treated with diet. The report of an October 1981 VA examination includes a diagnosis of mild glucose intolerance, clinically insignificant. The examiner noted that the Veteran had not been informed to be fasting, and the blood sugar report was not a fasting sugar. The examiner also noted that the Veteran had a negative fasting history for diabetes mellitus, and that he did not have symptoms or signs referable to diabetes mellitus except for nocturia two or three times a night for as long as he could remember. Since the Veteran's glucose intolerance appeared to be fairly mild, the examiner doubted that the Veteran's nocturia was explained by glycosuria, which was also tested. Based on this evidence, the RO concluded that diabetes mellitus was not shown by the evidence of record in an October 1981 rating decision. The Veteran did not appeal, nor submit new and material evidence within one year of the decision. The October 1981 rating decision, therefore, became final. The present claim was initiated by the Veteran in June 2002. Evidence added to the record includes a February 2009 medical statement from the Veteran's treating physician, indicating that the Veteran was noted to have diabetes mellitus upon his discharge from active service, and that his diabetes mellitus had progressed, and was now severe; and an August 2012 VA examination, diagnosing the Veteran with diabetes mellitus and indicating that the Veteran did not meet the criteria to support a diagnosis of diabetes mellitus until after service. New evidence that is not cumulative and is related to the previous denial of the claim for service connection consists of the February 2009 medical statement from the Veteran's treating physician, and the August 2012 VA examination report. Given the presumed credibility, the additional evidence is both new and material because it raises a reasonable possibility of substantiating the claim. Hence, the Veteran's claim for service connection for diabetes mellitus is reopened. 38 U.S.C.A. § 5108. As will be discussed below in the Remand section, the Board finds that additional development is required prior to adjudication of the underlying merits of the Veteran's claim. B. Hypertension The RO originally denied service connection for hypertension with heart disease in November 2002 on the basis that neither a diagnosis of hypertension nor a diagnosis of heart disease was shown in the service treatment records, although the Veteran had periods of elevated blood pressure. The evidence of record at the time of the last denial of the claim included the Veteran's service treatment records, an October 1981 VA examination report, private treatment records, and statements from the Veteran. Service treatment records reflect that the Veteran had a negative history for hypertension, and was found to have elevated blood pressure during his retirement examination in February 1981. A five-day blood pressure check was conducted, and the average reading was shown as within normal limits. The report of an October 1981 VA examination shows a normal cardiovascular system, and a blood pressure reading of 134/80. Private treatment records, dated in September 1999, show a longstanding history of hypertension for more than ten years and present treatment for unstable angina. Based on this evidence, the RO concluded that neither hypertension nor heart disease was shown in active service in a November 2002 rating decision. The Veteran did not appeal, nor submit new and material evidence within one year of the decision. The November 2002 rating decision, therefore, became final. The present claim was initiated by the Veteran in February 2009. Evidence added to the record includes a February 2009 medical statement from the Veteran's treating physician, indicating that the Veteran was noted to have significantly elevated blood pressure upon his discharge from active service, and suffered from moderate-to-severe hypertension at the time of his discharge; and that the Veteran was placed on hypertensive medication after his service discharge, and continued to have moderate-to-severe hypertension; and an August 2012 VA examination, diagnosing the Veteran with essential hypertension and indicating that the condition started after active service. New evidence that is not cumulative and is related to the previous denial of the claim for service connection consists of the February 2009 medical statement from the Veteran's treating physician, and the August 2012 VA examination report. Given the presumed credibility, the additional evidence is both new and material because it raises a reasonable possibility of substantiating the claim. Hence, the Veteran's claim for service connection for hypertension is reopened. 38 U.S.C.A. § 5108. As will be discussed below in the Remand section, the Board finds that additional development is required prior to adjudication of the underlying merits of the Veteran's claim. III. Increased Rating Claim Service connection has been established for radiculopathy with partial right foot drop. The RO has evaluated the Veteran's disability under Diagnostic Code 8520 as 60 percent disabling based on severe incomplete paralysis. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2014). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.3 (2014). A 60 percent evaluation is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In this case, the Veteran described worsening radiculopathy of the right leg and foot. In August 2011, the Veteran described weakness and pain in the right lower extremity and trouble sleeping at times. The Board finds the Veteran's statements to be credible. The report of the September 2009 VA examination reflects a diagnosis of right L4-L5 motor, and L5-S1 sensory radiculopathy with mild functional impairment. Examination of the right lower extremity revealed right leg atrophied with leg circumference much less on the right at 121/4 inches and 14 inches on the left. Right ankle dorsiflexion was 5 degrees; plantar flexion was 40 degrees. Inversion and eversion strength to gravity and resistance was absent on the right. Right foot instability and weakness were noted. There was no painful motion, edema, or tenderness. There were no functional limitations with standing and walking. The Veteran was ambulatory, although he dragged his right foot. The report of the August 2011 VA examination reflects intermittent symptoms of mild pain and numbness, and partial right foot drop. Muscle atrophied on the right side was 30.5 centimeters, and decreased sensory was noted on the right. The examiner noted that the Veteran's gait was abnormal, and that the Veteran slapped his right foot down due to partial right foot drop. There was objective evidence of incomplete paralysis of the right sciatic nerve, described by the examiner as moderately severe; and incomplete paralysis of the right external popliteal (common peroneal) nerve, the musculocutaneous (superficial peroneal) nerve, and anterior tibial (deep peroneal) nerve-each described by the examiner as mild or moderate. For diseases of the peripheral nerves, combined nerve injuries are rated by reference to the major involvement; or if sufficient in extent, consider radicular group ratings. As shown above, each examiner identified motor weakness and radiculopathy of the right lower extremity and involving, primarily, the sciatic nerve. Here, the Veteran is in receipt of the maximum rating for incomplete paralysis of the sciatic nerve under Diagnostic Code 8520. No examiner has identified complete paralysis of the sciatic nerve of the right lower extremity. While the Veteran is competent to describe some sensory deficit and pain in his right lower extremity, the objective evidence on neurological testing weighs against the Veteran's lay reports as to symptoms of complete paralysis. Although inversion and eversion strength of the right ankle was absent, the Veteran was still able to reach dorsiflexion to 5 degrees and plantar flexion to 40 degrees. Therefore, it cannot be said that there is no active movement possible of muscles below the knee. Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered. See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for each disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, VA must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-i.e., a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. Here, the symptomatology and impairment caused by the Veteran's service-connected radiculopathy with partial right foot drop are specifically contemplated by the rating criteria, as shown above. There are no other ratable symptoms stemming from the disability that are not currently considered in the rating criteria. Likewise, all of the Veteran's symptoms and manifestations have been considered based on all available rating criteria for the disability. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the Board finds that the degree of disability throughout the rating period under consideration is contemplated by the rating schedule; therefore, the assigned rating is adequate. As such, referral for consideration for an extraschedular evaluation is not warranted. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Hence, the Board finds that the evidence is against a disability rating in excess of 60 percent for radiculopathy with partial right foot drop. IV. Restoration Claim The Veteran is challenging the reduction of the disability rating assigned for residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1, from 20 percent disabling to 10 percent disabling. Here, the rating reduction was carried out in a March 2010 rating decision; and regulatory procedures set forth in 38 C.F.R. § 3.105(e) are inapplicable, in this case, because the rating reduction neither reduced nor discontinued the amount of compensation payable to the Veteran. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 4 Vet. App. 413 (1993) (noting that the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. Historically, in this case, the RO granted service connection and assigned an initial 10 percent disability rating for residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 (formerly discogenic back pain with sciatica), effective August 1981. Effective February 18, 2009, the RO increased the evaluation for the Veteran's lumbar spine disability to 20 percent, based on evidence showing range of motion limited to 50 degrees on forward flexion. Effective January 19, 2010, the RO decreased the evaluation for residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 to 10 percent. The Veteran contends that the 20 percent disability rating that had been assigned for residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1, should not have been reduced because the reduction was based on an inadequate examination that lacked thoroughness and failed to use proper measurement tools for range of motion testing. Because this case involves the reduction of a rating, the question is not whether the Veteran meets the criteria for a 20 percent rating, but, rather, whether the reduction in his rating was proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (holding that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and does not also contemplate a claim for an increased rating). The Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-282 (1992). In addition, it must be determined that an improvement in a disability has actually occurred; and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). The report of an October 2002 VA examination reflects that the Veteran had chronic problems with low back pain, and that he underwent a lumbar decompression in May 2002. Examination of the lumbar spine currently revealed painful ranges of motion, with flexion to 90 degrees; extension to 15 degrees; bending to the right and left, to 25 degrees; and rotation to the right and left, to 20 degrees. X-rays showed some slight disc space narrowing at L5-S1 interspace, with mild reactive change consistent with degenerative and probably post-surgical changes. The October 2002 examiner opined that the Veteran had periods of painful flare-up, which may alter his strength, coordination, and range of motion. During a September 2009 VA examination, the Veteran reported current symptoms of low back pain, stiffness, and severe back pain described as a level 5 (on a 10-point scale) with prolonged walking or standing or with strenuous work. Range of motion of the thoracolumbar spine in September 2009 was to 50 degrees on flexion; 12 degrees on extension; 10 degrees on bending right; 15 degrees on bending left; 18 degrees on rotating right; and 20 degrees on rotating left. The examiner noted that range of motion of the thoracolumbar spine was limited by pain. Diagnoses included lumbosacral disc disease and degenerative disc disease at L5-S1. The report of a January 2010 VA examination reflects that the Veteran wore a back brace periodically, and had no back injections. He complained of decreases in his range of motion in the lumbar spine, as well as stiffness, weakness, and fatigability with use. He denied any lack of endurance or incapacitation. Examination in January 2010 revealed minimal pain associated with range of motion with gravity or against resistance. Range of motion of the thoracolumbar spine was to 80 degrees on flexion; 10 degrees on extension; 8 degrees on bending right; 10 degrees on bending left; 22 degrees on rotating right; and 22 degrees on rotating left. The examiner noted that all range of motion was limited by pain and previous surgery. Repetitive motion also caused some increase in pain; and there was some fatigue and weakness, but no lack of endurance or incoordination noted. The examiner could not determine any additional limitation due to flare-ups, without resorting to speculation. The findings of the January 2010 VA examination formed the basis of the RO's reducing the Veteran's disability rating from 20 percent to 10 percent, as a result of greater flexion of the lumbar spine. However, a review of the record demonstrates that the RO improperly relied upon the January 2010 VA examination report, which did not specifically address whether the Veteran's service-connected residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 had improved; and, if so, whether that improvement actually reflected improvement in his ability to function under the ordinary conditions of life and work. Indeed, the January 2010 examination report did not show any material improvement from the prior, September 2009 examination-just four months earlier. In September 2009, the range of motion on flexion was to 50 degrees with pain. In January 2010, the range of motion on flexion was to 80 degrees with pain; and repetitive motion was noted to cause more pain, as well as fatigue and weakness. While the January 2010 examiner did not quantify the additional limited motion on repetitive use, the Board finds that actual improvement has not been demonstrated. The Board is mindful that, in reducing the disability rating from 20 percent to 10 percent, the RO considered the results of the Veteran's January 2010 VA examination, which tended to show that the Veteran's service-connected residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 did not meet the criteria for a 20 percent rating. Crucially, however, the RO failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life. Pursuant to the Court's holdings in Faust and Brown, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. at 350; see also Brown v. Brown, 5 Vet. App. at 421. Given the functional impairment that was noted but not quantified in January 2010, the Board finds that the RO's failure to make such a determination in this case renders the reduction void. The law is clear that certain procedures, set forth in Brown and Faust, must be followed when a disability rating is reduced. The RO's failure to comply with the requirements renders the reduction from 20 percent to 10 percent void ab initio. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see also Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-82 (1992). In Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991), the Court explained that where a rating reduction was made without observance of law, the erroneous reduction must be vacated and the prior rating restored. Such action is required in the instant case. Accordingly, the previously assigned 20 percent rating for residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 is restored as of January 19, 2010. The appeal is allowed to that extent. ORDER The application to reopen the previously denied claim of service connection for diabetes mellitus is granted. The application to reopen the previously denied claim of service connection for hypertension is granted. A disability rating in excess of 60 percent for radiculopathy with partial right foot drop is denied. Reduction of a 20 percent rating for service-connected residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1 was improper; restoration of a 20 percent rating is granted. REMAND Diabetes Mellitus and Hypertension The Board notes that both diabetes mellitus and hypertension are shown as chronic diseases under 38 C.F.R. § 3.309. With respect to diabetes mellitus, the Veteran contends that service connection is warranted on the basis that he was diagnosed with mild chemical diabetes (borderline) in active service; and he was treated with a diabetic diet. His service treatment records at the time of his retirement examination in February 1981 noted mild chemical diabetes, treated with diet. The Veteran also reported that his diabetes mellitus has progressed to the point where medication is required. He is competent to describe his symptoms. In February 2009, the Veteran's treating physician opined that the Veteran had diabetes mellitus upon his discharge from active service, and it subsequently worsened. A VA examiner in August 2012 found that the Veteran's condition had not met the criteria for a diagnosis of diabetes mellitus until after his retirement from active service. With respect to hypertension, the Veteran contends that service connection is warranted on the basis that elevated blood pressure readings were noted on his retirement examination from active service in February 1981. VA records show a longstanding history of hypertension. In February 2009, the Veteran's treating physician explained that documentation of several blood pressure readings in active service had denoted moderately severe hypertension. Service connection requires a current disability, an injury or incident in service, and evidence linking the two. The Board is not permitted to substitute its own judgment for that of competent physicians. In this case, the opinions of record on both sides fall short of detail allowing for appellate review. Where there is a reasonable possibility that a current condition is related to or is the residual of a condition or injury experienced in service, VA should seek a medical opinion as to whether the Veteran's claimed current disabilities are in any way related to the condition or injury experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). TDIU Service connection is currently in effect for radiculopathy with partial right foot drop, evaluated as 60 percent disabling; residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1, evaluated as 20 percent disabling; acid peptic disease with recurrent duodenal ulceration and hiatal hernia, evaluated as 10 percent disabling; and bronchitis and hemorrhoids, each evaluated as 0 percent (noncompensable) disabling. The combined disability rating is 70 percent and meets the threshold requirements for a TDIU. The Veteran reported that he last worked full time in January 1999; and that he became too disabled to work in February 2009. He last worked as a contract specialist. The Veteran reported completing four years of college, and reported having various contracting and management courses since then. In January 2010, a VA examiner opined that the Veteran was able to do some sedentary employment. A VA examiner in August 2011 opined that the Veteran's radiculopathy with partial right foot drop did not impact his ability to work. In August 2011, the Veteran also indicated that he took several prescribed medications for treatment of his service-connected disabilities. Based on a review of the evidence of record, further clarification of his education, training, and work history is necessary before the adjudicatory decision of whether he can perform sedentary work is required. While further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records, from September 2012 forward; and associate them with the Veteran's claims file. 2. Afford the Veteran a VA examination(s) to identify all current disability underlying the Veteran's current complaints of diabetes mellitus and hypertension; and the likely etiology of each disease or injury. (a) For any current disability identified, the examiner(s) is requested to determine whether it at least as likely as not (50 percent probability or more) either had its onset in active service or is otherwise related to active service. (b) The examiner(s) should also address whether diabetes mellitus or hypertension had its onset in the first post-service year and, if so, the severity thereof. (c) The examiner(s) should also determine whether it is at least as likely as not (50 percent probability or more) that any service-connected disability caused any diabetes mellitus or hypertension. (d) The examiner(s) should also determine whether it is at least as likely as not (50 percent probability or more) that any service-connected disability aggravated (i.e., increased in severity) any diabetes mellitus or hypertension found to be present. If aggravation is found, the examiner(s) should address the following medical issues: (1) the baseline manifestations of the Veteran's diabetes mellitus or hypertension found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to a service-connected disability. All opinions and conclusions expressed must be supported by a complete rationale in a report. The Veteran's claims file, to include a complete copy of this REMAND, must be available to the examiner(s), and the examination report(s) should note review of the file. 3. Schedule the Veteran for an examination with an appropriate medical professional who is qualified to offer an opinion regarding the functional impairment of the Veteran's service-connected disabilities with regard to his employment. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the report of the examination should note review of the file. The examiner should interview the Veteran as to his education, training, and employment history. In proffering an opinion, the examiner should address the Veteran's functional limitations due to his service-connected disabilities, jointly-(i.e., radiculopathy with partial right foot drop, residuals of degenerative disc disease status-post laminectomy and discectomy of L5-S1, acid peptic disease with recurrent duodenal ulceration and hiatal hernia, bronchitis, and hemorrhoids - to include the effects of prescription medication taken for such disabilities), as they may relate to his ability to function in a work setting and to perform work tasks, to include sedentary employment and/or light duty work (other than marginal employment). The examiner should set forth a rationale for the conclusions reached. 4. After ensuring that the requested actions are completed, re-adjudicate the claims on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the claims file to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2014). The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs