Citation Nr: 1800061 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-10 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Whether the reduction of the rating for a service-connected thoracolumbar spine disability from 20 percent to 10 percent, effective October 28, 2010, was proper. 3. Whether the reduction of the rating for service-connected right sciatic nerve disability from 20 percent to noncompensable, effective October 28, 2010, was proper. 4. Whether the reduction of the rating for a service-connected right wrist disability from 10 percent to noncompensable, effective June 23, 2011, was proper. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. S. Kyle, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1988 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2011 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Original jurisdiction for the Veteran's claims was transferred to the RO in Atlanta, Georgia, prior to certification to the Board. The May 2011 rating decision, in pertinent part, reduced the ratings for the Veteran's service-connected thoracolumbar spine disability and right sciatic nerve disability and denied service connection for a right hip disability. The November 2011 rating decision, in pertinent part, reduced the rating for the Veteran's service-connected right wrist disability and denied entitlement to TDIU. The Veteran appeared at a hearing before the undersigned in March 2017. A transcript of the hearing is of record. The issue of service connection for a right hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The rating reductions for the Veteran' service-connected thoracolumbar spine disability and right sciatic, effective October 28, 2010, resulted in a reduction of his overall combined rating from 90 percent to 80 percent, and he was not provided a proposed rating setting forth all material facts and reasons prior to the reductions. 2. The June 2011 VA examination report relied upon for rating reduction for the Veteran's right wrist disability was inadequate for rating purposes. 3. The Veteran's service-connected disabilities have prevented him from engaging in substantially gainful employment since December 13, 2009, and he has been entitled to a combined rating of at least 70 percent with disabilities resulting from a common etiology ratable at 40 percent or more since that date. CONCLUSIONS OF LAW 1. The rating reductions for the Veteran's service-connected thoracolumbar spine disability and right sciatica, effective October 28, 2010, were improper, and restoration of the 20 percent rating assigned for each disability is warranted. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 2. The rating reduction for the Veteran's right wrist disability, effective June 23, 2011, was improper, and restoration of the 10 percent rating assigned for the disability is warranted. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 3. The criteria for entitlement to TDIU have been met since December 13, 2009. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Propriety of Rating Reductions The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after VA has met certain procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Substantively, the criteria governing rating reductions for service connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings that have been continued for five years or more. In such cases, the regulation prescribes more stringent criteria that must be met before a rating may be reduced. Where a disability rating has continued at the same level for less than five years, as in this case, the analysis is conducted under 38 C.F.R. § 3.344(c), which provides that reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. VA is also required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000). In cases involving disability ratings of the musculoskeletal system, VA must also consider the provisions of 38 C.F.R. §§ 4.40 through 4.71. Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The law provides that where a rating reduction was made without observance of law the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. Here, the Board finds restoration of the ratings for the Veteran's service connected thoracolumbar spine disability, right sciatic nerve disability, and right wrist disability is warranted. The Veteran was not provided a rating proposing the reduction setting forth all material facts and reasons in accordance with 38 C.F.R. §3.105(e) prior to the reductions. The code sheet that accompanies the May 2011 rating decision suggests a reduction for the thoracolumbar spine disability and right sciatic was permitted without a proposed rating because service connection for post-traumatic stress disorder (PTSD) was granted with a 50 percent rating increasing the Veteran's combined overall rating; however, the code sheet also reveals the Veteran's combined rating was 90 percent, effective October 20, 2010, due to the grant of service connection for PTSD and then reduced to 80 percent, effective October 28, 2010, due to the reductions for the thoracolumbar spine disability and right sciatic. Thus, the effect of the reductions resulted in lower compensation for the Veteran, as he was entitled to compensation at the 90 percent rate prior to the effective date of the reductions for the thoracolumbar spine disability and right sciatic. Accordingly, a rating proposing the reduction setting forth all material facts and reasons was required under 38 C.F.R. § 3.105(e). As a rating proposing the reduction was not sent to the Veteran when required under 38 C.F.R. § 3.105(e), the rating reductions for the thoracolumbar spine disability and right sciatic were void ab initio. Thus, restoration of the 20 percent ratings assigned for each disability is warranted, effective October 28, 2010. The Board finds the reduction in the right wrist disability rating improper because the June 2011 VA examination report relied upon for the reduction was inadequate for rating purposes. The United States Court of Appeals for Veterans Claims (Court) provided a precedential interpretation of the final sentence of 38 C.F.R. §4.59 and held that sentence creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, VA examinations must include range of motion testing of the pertinent joint, as well as the paired joint, in active motion, passive motion, and in weight-bearing and nonweight-bearing. The June 2011 VA examination did not include the testing required by 38 C.F.R. § 4.59. Second, there is no indication the June 2011 VA examiner considered additional functional impairment due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups, as there are no findings in this regard included in the examination report. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, restoration of the 10 percent rating for the right wrist disability, effective June 23, 2011, is also warranted. II. Entitlement to TDIU TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Disabilities resulting from a common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. Here, the record establishes the Veteran stopped working on December 13, 2009. He has been entitled to at least a 70 percent combined rating for his service-connected disabilities since that date. His combined rating includes a 20 percent rating for a thoracolumbar spine disability with separate 20 percent ratings assigned for related sciatica of each lower extremity. As the thoracolumbar spine disability and sciatica result from a common etiology, they are considered one disability for the purposes of meeting the thresholds for TDIU; therefore, the Veteran has also had one disability ratable at 40 percent or more since the date he stopped working. The record also establishes the Veteran's service-connected disabilities have prevented him from engaging in substantially gainful employment since December 13, 2009. The record reflects the Social Security Administration (SSA) determined the Veteran met the medical requirements for disability benefits as of December 13, 2009, due to the impairment resulting from his service-connected thoracolumbar spine disability with associated neurological impairment and PTSD. While not dispositive on the issue of TDIU, the SSA grant of disability compensation constitutes highly probative evidence regarding the Veteran's TDIU claim. See Collier v. Derwinski, 1 Vet. App. 413 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). There is also further evidence of impairment in the Veteran's case. He has reported his service-connected right wrist disability makes it extremely difficult for him to type and perform other work-related tasks. When this impairment is viewed in conjunction with the impairment noted by the SSA, the Board finds the evidence shows it is at least as likely as not the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment. The Board notes the increased rating claim that led to the current appeal was received in January 2010. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's formal TDIU application was received shortly thereafter in April 2010. Generally, the effective date for an award of increased compensation is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Yet, if an increase in disability is factually ascertainable within one year prior to the receipt of the claim for increased compensation, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o); see also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12- 98 (1998). Here, it is factually ascertainable that the circumstances that warrant an increase in the Veteran's case in the form of TDIU occurred in the year prior to the receipt of his claim, as the evidence clearly shows the Veteran stopped working on December 13, 2009 due to the impairment resulting from his service-connected disabilities; therefore, TDIU is warranted as of this date. ORDER Restoration of the 20 percent rating for a service-connected thoracolumbar spine disability, effective October 28, 2010, is granted. Restoration of the 20 percent rating for right sciatica, effective October 28, 2010, is granted. Restoration of the 10 percent rating for a right wrist disability, effective June 23, 2011, is granted. Entitlement to TDIU, effective December 13, 2009, is granted. REMAND VA is required to obtain a medical opinion when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, an October 2010 VA examiner diagnosed the Veteran as having right hip tendonitis/bursitis, but she did not otherwise provide an opinion regarding the claim. The January 2014 statement of the case indicates the AOJ denied the Veteran's service connection claim for a right hip disability based on treatment records that indicate his right hip pain is a result of his service-connected thoracolumbar spine disability rather than a separate disability. The Board finds this evidence is insufficient to make an informed decision on the Veteran's claim. There is competent evidence suggesting the Veteran has a current disability, which may be associated with a service-connected disability, but an expert opinion has not been obtained regarding the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to obtain a nexus opinion regarding his service connection claim for a right hip disability. The selected examiner must address whether the Veteran has a right hip disability that is at least as likely as not the result of disease or injury in service; or proximately due to, or aggravated by, a service-connected disability, to include his service-connected thoracolumbar spine and bilateral knee disabilities. The opinion must address both causation and aggravation separately in the context of secondary service connection to be deemed adequate. The examiner is advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examination report must include a complete rationale for the opinion provided. 2. Readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs