Citation Nr: 1640213 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 10-49 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Propriety of the reduction of a disability rating from 50 percent to 10 percent for right elbow pain and degenerative joint disease with joint spur, effective from August 1, 2010. 2. Entitlement to an increased disability rating for right elbow pain and degenerative joint disease with joint spur for the period since August 1, 2010. 3. Propriety of the reduction of a disability rating from 20 percent to 10 percent for lumbar disc disease at L4-L5 and L5-S1, effective from December 22, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active military service from September 1974 to September 1977 and from January 2007 to May 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO reduced the disability rating for the Veteran's right elbow pain and degenerative joint disease with joint spur from 50 percent to 10 percent, effective from August 1, 2010. The Veteran testified before the undersigned at a hearing at the RO in April 2012. In September 2014, the Board remanded the case for further development. The record reflects substantial compliance with the remand requests with respect to the reduction issue. See Dyment v. West, 13 Vet. App. 141 (1999). A December 2015 rating decision reduced the disability rating for the Veteran's lumbar disc disease at L4-L5 and L5-S1 from 20 percent to 10 percent, effective from December 22, 2015. In January 2016, the Veteran filed a notice of disagreement. The issues of entitlement to an increased disability rating for right elbow pain and degenerative joint disease with joint spur for the period since August 1, 2010, and the propriety of the reduction of a disability rating from 20 percent to 10 percent for lumbar disc disease at L4-L5 and L5-S1, effective from December 22, 2015, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At the time of the reduction in evaluation of the Veteran's right elbow pain and degenerative joint disease with joint spur from 50 percent to 10 percent, there was a showing of improvement in disability, evidenced by flexion limited to only degrees with full extension. CONCLUSION OF LAW The reduction in evaluation of right elbow pain and degenerative joint disease with joint spur from 50 percent to 10 percent was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.105, 3.344, 4.115a, 4.71a, Diagnostic Code 5206 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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) (2015). The regulations governing reductions of evaluations for compensation contain their own notification and due process requirements. 38 C.F.R. § 3.105(e) (2015). Thus, the notice provisions of 38 C.F.R. § 3.159 do not apply to this matter. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating 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 beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). In this case, the requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 50 to 10 percent for the Veteran's right elbow pain and degenerative joint disease with joint spur was properly carried out by the RO. The RO notified the Veteran of a proposed rating reduction in a rating decision of December 2009. The Veteran was notified in a letter of that month and he was provided a copy of the rating decision which provided a detailed explanation about the RO's proposed action. The RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced. The RO also gave the Veteran 30 days to request a predetermination hearing. In a February 2010 letter, the RO advised the Veteran that the December 2009 letter had an error in the combined evaluation for all of his service-connected disabilities and that the correct combined evaluation will drop from 90 percent to 70 percent. The RO took final action to reduce the disability rating in a May 2010 rating decision. The RO informed the Veteran of this decision by letter that same month. The reduction was not made prior to 60 days from the notification of the denial. The notice and procedural protections of 38 C.F.R. § 3.105(e) were clearly met. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting in obtaining service treatment records and pertinent post-service 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 (2015). 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 folder contains the Veteran's service treatment records, and post-service reports of VA and private treatment and examination. Also of record are the Veteran's statements in support of the claim. The Board has 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 claim. VA provided the Veteran with an examination in December 2009 to determine the nature and severity of his disability. The Board notes that the examination report does not include joint testing for pain on both active and passive motion, or in weight-bearing and nonweight-bearing. 38 C.F.R. § 4.59 (2015); Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). However, as a current examination could not provide that information regarding the severity of the Veteran's disability at the time of the reduction in evaluation, the Board finds that a remand for a current examination would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994). Moreover, the October 2008 VA examination report, which was the basis of the grant of the 50 percent rating, also does not include that information. Thus, the Board further finds that the Veteran is not prejudiced by the omission of that information in the December 2009 examination report. Bernard, 4 Vet. App. 384. Given the above, 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). Rating Reduction With respect to rating reductions, general regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2 (2015). The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13 (2015). It must further show that the disability has improved in such a manner that the Veteran's ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). [The Board notes that the provisions of 38 C.F.R. § 3.344(a) do not apply where, as here, a rating has not been in effect for 5 years, or the disability has not stabilized. 38 C.F.R. § 3.344(c) (2015).] The Veteran's right elbow pain and degenerative joint disease with joint spur has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5206. As the Veteran is right handed, the rating criteria for the major extremity will be used. Under Diagnostic Code 5206, flexion limited to 45 degrees warrants a 50 percent rating and flexion limited to 100 degrees warrants a 10 percent rating. At the time of the February 2009 rating decision that assigned the 50 percent rating for the Veteran's right elbow pain and degenerative joint disease with joint spur, the evidence of record consisted of x-ray findings of the mild degenerative changes and a large olecranon spur, and range of motion findings of pain on flexion of the right elbow to 40 degrees and pain occurring with complete extension of the right elbow, with fatigue following repetitive use. The Veteran also reported having elbow pain every day and swelling once per week. The above evidence was contained in an October 2008 VA examination report. In the May 2010 rating decision, the RO reduced the rating for the Veteran's right elbow disability based on a December 2009 VA examination that found flexion to 145 degrees with pain starting at 100 degrees and extension to 0 degrees with pain starting at 45 degrees, with no additional limitation due to pain, fatigue, weakness, or lack of endurance following repetitive use. The Veteran also reported having elbow pain every day but no swelling. Compared to the earlier findings showing flexion of the right elbow limited to 40 degrees and fatigue following repetitive use, the Board agrees with the RO that reexamination has disclosed improvement in the Veteran's right elbow disability, as evidenced by full flexion and no fatigue following repetitive use. The Board notes that there was pain on range of motion testing during both the October 2008 and December 2009 examinations; however, while the Veteran was able to flex to only 40 degrees in October 2008, he was able to flex to 145 degrees in December 2009, including following repetitive use. The Board observes that such indicates an improvement in disability. Moreover, there is evidence to suggest that such improvement applied to the ordinary conditions of life and work, as evidenced by no more swelling after a week of work. Further, subsequent VA examinations in January 2011 and October 2014 showed flexion limited to 110 degrees and 130 degrees, respectively, indicating continued improvement over the prior flexion limited to 40 degrees. Thus, the reduction in evaluation of the Veteran's right elbow disability from 50 percent to 10 percent was proper. 38 C.F.R. § 3.344(c). Given the above, the Board finds that at the time of the reduction in evaluation of right elbow pain and degenerative joint disease with joint spur from 50 percent to 10 percent, there was a showing of improvement in disability. Thus, the reduction in evaluation of the Veteran's disability from 50 percent to 10 percent was proper. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As the reduction in evaluation of right elbow pain and degenerative joint disease with joint spur from 50 percent to 10 percent was proper, the appeal is denied. REMAND Regrettably, a remand is required with respect to the claim for an increased rating for right elbow pain and degenerative joint disease with joint spur. While the AOJ afforded the Veteran a VA examination in compliance with the prior remand, another examination is needed pursuant to new caselaw. See Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The October 2014 VA examination report does not include joint testing for pain on both active and passive motion, as required by 38 C.F.R. § 4.59 (2015). The earlier January 2011 VA examination report does not include joint testing for pain on both active and passive motion, or in weight-bearing and nonweight-bearing, which is also required by 38 C.F.R. § 4.59. Thus, the AOJ should afford the Veteran an examination that obtains all of the information required by 38 C.F.R. § 4.59. Prior to the examination, the AOJ should obtain any outstanding VA medical records. The record contains VA treatment notes through August 2016. Thus, the AOJ should obtain any treatment notes since that time. A December 2015 rating decision reduced the disability rating for the Veteran's lumbar disc disease at L4-L5 and L5-S1 from 20 percent to 10 percent, effective from December 22, 2015. In January 2016, the Veteran filed a timely notice of disagreement. While the Board notes that the AOJ has acknowledged the Veteran's notice of disagreement, the Board is required to remand the issue of the propriety of the reduction of a disability rating from 20 percent to 10 percent for lumbar disc disease at L4-L5 and L5-S1, effective from December 22, 2015, for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case on the issue of the propriety of the reduction of a disability rating from 20 percent to 10 percent for lumbar disc disease at L4-L5 and L5-S1, effective from December 22, 2015. Advise the Veteran that a timely substantive appeal is necessary to perfect the appeal to the Board. If the appeal is perfected, then return the case to the Board. 2. Obtain any VA treatment notes since August 2016. 3. Then, schedule the Veteran for a VA examination to determine the current severity of his right elbow pain and degenerative joint disease with joint spur. The examiner should review the claims folder and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted, to include tests of range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and the paired joint. The examiner should set forth all objective findings, particularly the current severity of symptoms. 4. Then, readjudicate the claim for an increased disability rating for right elbow pain and degenerative joint disease with joint spur for the period since August 1, 2010. If any decision remains 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 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). ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs