Citation Nr: 1756693 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-37 136A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether the reduction in the rating for right lower extremity radiculopathy from 20 percent to 10 percent effective January 18, 2008, was proper. 2. Entitlement to an increased rating for right lower extremity radiculopathy. 3. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine. 4. Entitlement to a total disability rating based on individual unemployabilty (TDIU). REPRESENTATION Veteran is represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to January 1999 and from August 2003 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that in June 2017, the Veteran's representative submitted another substantive appeal in response to the most recent supplemental statement of the case, which contains another request for a Board hearing. However, neither the Veteran nor his representative has provided a reason why a second hearing should be scheduled. The Veteran already testified at a hearing before the Board, at which his representative was present. Accordingly, to the extent that the Veteran is requesting a second hearing, that request is denied. This matter was previously before the Board in September 2015, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Improvement in the Veteran's right lower extremity radiculopathy under the ordinary conditions of life has not been shown. 2. The Veteran failed to report without good cause to a VA examination scheduled pursuant to his increased rating claim for right lower extremity radiculopathy. 3. The Veteran failed to report without good cause to a VA examination scheduled pursuant to his increased rating claim for degenerative disc disease of the lumbar spine. 4. The Veteran failed to report without good cause to a VA examination scheduled pursuant to his TDIU claim. CONCLUSIONS OF LAW 1. The criteria for restoration of the 20 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 4.124a, Diagnostic Code 8520 (2017). 2. The Veteran's increased rating claim for right lower extremity radiculopathy must be denied due to the Veteran's failure to report for a scheduled VA examination. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R § 3.655 (2017). 3. The Veteran's increased rating claim for degenerative disc disease of the lumbar spine must be denied due to the Veteran's failure to report for a scheduled VA examination. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R § 3.655 (2017). 4. The Veteran's claim for TDIU must be denied due to the Veteran's failure to report for a scheduled VA examination. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R § 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Reduction in Rating for Right Lower Extremity Radiculopathy Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In an April 2006 rating decision, service connection was granted for right lower extremity radiculopathy and a 20 percent rating was assigned, effective May 5, 2005. After the Veteran filed an increased rating claim for his service-connected low back disability in January 2008, the rating assigned to his right lower extremity radiculopathy was reduced to 10 percent, effective January 18, 2008. As the reduction did not result in a decrease of compensation that was being paid, a proposed reduction and other due process procedures were not required. See 38 C.F.R. § 3.105(e) (describing procedural requirements for the reduction in evaluation of a service-connected disability where the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made). Thereafter, the Veteran perfected an appeal of the rating reduction. The Veteran's 20 percent rating for right lower extremity radiculopathy was in effect from May 5, 2005, to January 17, 2008, a period of less than five years. Therefore, the specific protocols for reducing protected ratings are inapplicable to his claim. See 38 C.F.R. § 3.344 (a), (b). However, in any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); see also Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow all reduction cases "regardless of the rating level or the length of time that the rating has been in effect"). The Veteran's service-connected right lower extremity radiculopathy has been evaluated under the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve, and a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as "mild" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2017). Further, the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Upon review of the record, the Board finds that restoration of the 20 percent rating for right lower extremity radiculopathy is warranted. The 20 percent rating was based on findings during an April 2006 VA examination. The record shows that the Veteran reported constant sharp and dull pain radiating down the right lower extremity. A straight leg raising test was positive, and a physical examination revealed positive sciatic notch tenderness on the right side and altered sensation at the S1 dermatomal distribution in the right lower extremity. During a January 2008 VA examination, the Veteran reported sharp pain radiating down the right leg into the foot. Motor and sensory examinations were normal, and muscle strength was normal, with the exception of decreased strength in the right great toe. The examiner characterized the Veteran's radiculopathy as mild; however, the Board recognizes that "[d]ifferent examiners, at different times, will not describe the same disability in the same language," and VA must "interpret reports of examination in the light of the whole recorded history." 38 C.F.R. § 4.2 (2017). Although subsequent VA examinations revealed no lower extremity neurological deficits at the time of the examinations, a review of the Veteran's VA treatment records throughout the appeal period shows continued complaints of chronic right leg pain, cramping, numbness in the foot, and tenderness over the right sciatic notch. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record does not demonstrate that the Veteran's right lower extremity radiculopathy improved such that a reduction to 10 percent was warranted. Increased Rating Claims When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken accordingly as appropriate. 38 C.F.R. § 3.655(a). When the examination was scheduled in conjunction with a claim for an increase or any other original claim, other than an original compensation claim, the claim shall be denied. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). In the September 2015 remand, the Board determined that a new VA examination was necessary to evaluate the Veteran's increased rating claims for a low back disability and radiculopathy and to assess the effect of those disabilities on his employability. In May 2017, the Veteran was scheduled for a VA examination. However, the VA examiner, a board certified family physician, indicated that the Veteran refused to be seen by the examiner and that the Veteran stated that he needed to be examined by an orthopedic specialist. The examiner further noted that although boxes were checked in the VA examination report, it was required to close out the examination request, and he clarified that no examination was conducted, as the Veteran refused to submit to the examination. Upon review of the record, the Board finds that the Veteran's claimed entitlement to increased ratings, including entitlement to TDIU, cannot be established without a current VA examination. The Veteran has asserted that his right lower extremity radiculopathy causes frequent falls and that he is unable to maintain any gainful employment. In support of this, the Veteran submitted a May 2015 private medical examination and a May 2016 disability benefits questionnaire (DBQ) indicating that he is unable to sit, stand, or walk for even one hour during an eight-hour day; he is likely to be absent from work more than three times per month due to back pain; and he would have great difficulty engaging in any competitive work. The May 2016 DBQ also suggests that the Veteran is unable to perform activities of daily living. However, VA treatment records dated 2014 through 2016 show that the Veteran reported exercising regularly and being a self-employed real estate broker owning his own property management company. He also denied any falls, use of ambulatory devices, and gait or balance problems. Moreover, the Veteran himself has asserted that the VA examination reports already of record are inaccurate or inadequate for rating purposes. Accordingly, the Board finds that a new VA examination was necessary to reconcile the conflicting evidence of record and to assess the Veteran's entitlement to the claimed benefits. The Board also finds that the Veteran's refusal to submit to the VA examination is tantamount to failing to appear. Furthermore, neither the Veteran nor his representative has provided an adequate explanation for his refusal to submit to the examination, and the Board finds that the Veteran's desire to be evaluated by a particular specialist does not constitute good cause for his refusal to cooperate during his scheduled VA examination. The prior remand did not indicate that a specialist was required to conduct the examination. Moreover, prior to the scheduled VA examination, the Veteran was advised on several occasions, most recently in May 2017, that his failure to report for a VA examination may result in his claims being denied. As the Veteran failed to report for a VA examination without good cause scheduled pursuant to his increased rating claims, the Board is compelled to deny those claims. See 38 C.F.R. § 3.655(b). ORDER From the date of the reduction, restoration of the 20 percent rating for right lower extremity radiculopathy is granted. A rating in excess of 20 percent for right lower extremity radiculopathy is denied. A rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. A TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs