Citation Nr: 1800873 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 17-34 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to restoration of a 40 percent rating for peripheral neuropathy of the left lower extremity, effective May 13, 2011, to include the issue of whether the reduction to a 20 percent evaluation was proper. 2. Entitlement to increased ratings for peripheral neuropathy of the left lower extremity, currently evaluated as 40 percent disabling prior to May 13, 2011, and 20 percent since. 3. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for peripheral neuropathy of the left upper extremity, currently evaluated as 20 percent disabling. 5. Entitlement to an increased rating for peripheral neuropathy of the right upper extremity, currently evaluated as 30 percent disabling. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected disabilities. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1987. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a September 2009 VA 21-8940 Form, the Veteran stated that he is unable to work due, in pertinent part, to his service-connected peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. The Board finds that this record evidence reasonably raises the claim for a TDIU due to the service-connected disabilities on appeal, and is included in the Veteran's appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). With the exception of the restoration issue, the remaining issues 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 October 2012 rating decision, the evidence established that an improvement in the peripheral neuropathy of the left lower extremity had actually occurred and resulted in an improvement in his ability to function under the ordinary conditions of life. CONCLUSION OF LAW The requirements were met for reduction of the Veteran's disability rating for peripheral neuropathy of the left lower extremity from 40 to 20 percent effective May 13, 2011, and thus, restoration is denied. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 3.105(e), 3.344, 4.124a, Diagnostic Code (DC) 8520 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As part of his increased rating appeal, the Veteran seeks restoration of a 40 percent evaluation for the service-connected peripheral neuropathy of the left lower extremity, effective May 13, 2011, to include the issue of whether the reduction to a 20 percent evaluation was proper. In a May 2002 rating decision, the AOJ granted service connection for peripheral neuropathy of the feet and awarded a 0 percent disability rating under 38 C.F.R. § 4.119, DC 7913 (pertaining to diabetes mellitus) and 38 C.F.R. § 4.124a, DC 8520 (pertaining to paralysis of the sciatic nerve). The disability rating was made effective October 31, 2000. In a February 2005 rating decision, the AOJ assigned a separate disability rating for peripheral neuropathy of the left lower extremity and assigned a 10 percent rating under 38 C.F.R. § 4.124a, DC 8520. The 20 percent disability rating was made effective from January 26, 2004. The Veteran was also in receipt of a separate disability rating for his diabetes mellitus under 38 C.F.R. § 4.119, DC 7913. In a February 2009 rating decision, the AOJ increased the disability rating for peripheral neuropathy of the left lower extremity to 20 percent under 38 C.F.R. § 4.124a, DC 8520. The 20 percent disability rating was made retroactively effective from November 8, 2007. In an October 2009 rating decision, the AOJ increased the rating for the peripheral neuropathy of the left lower extremity to 40 percent under 38 C.F.R. § 4.124a, DC 8520; effective from March 23, 2009. In September 2010, the Veteran filed an increased rating claim for peripheral neuropathy of the left lower extremity. The AOJ issued a rating decision in October 2012, which decreased the rating for the peripheral neuropathy extremity to 20 percent, retroactively effective from May 13, 2011, the date improvement was shown. Prior to, and following, the October 2012 rating decision, the total combined disability rating was 90 percent. Generally, when a reduction in the evaluation of a service-connected disability or employability status is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and be furnished detailed reasons therefore. 38 C.F.R. § 3.105(e). In addition, the AOJ must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. If no additional evidence is received within the prescribed time period to contest the reduction, the proposed action may be accomplished. The effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e). Because, the October 2012 rating decision did not change the Veteran's total combined disability rating of 90 percent, and thus, it did not result in a reduction of compensation payments currently being made 38 C.F.R. § 3.105(e) was not applicable to the reduction. The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted. In this regard, 38 C.F.R. § 3.344(a) notes that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination ____ months from this date, § 3.344." The rating agency will determine of the basis of the facts in each individual case whether 18, 24, or 30 months will be allowed to elapse before the reexamination will be made. 38 C.F.R. § 3.344(b). The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). In the present case, the 40 percent rating was in effect less than 5 years and the provisions of 38 C.F.R. § 3.344(a)-(b) are not applicable. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Nevertheless, the U.S. Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement reflects an improvement under the ordinary conditions of life and work. Here, the Board finds that the evidence supports the reduction of the Veteran's peripheral neuropathy of the left lower extremity evaluation from 40 percent to 20 percent under 38 C.F.R. §§ 4.124a, DC 8520, effective May 13, 2011. DC 8520 provides ratings for paralysis of the sciatic nerve. DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and, severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran was previously granted a 40 percent disability rating for his peripheral neuropathy of the left lower extremity based on the results of a VA peripheral nerves examination in September 2009. At the examination, the Veteran stated that his left foot burned all of the time. He reported numbness and stated that his prescribed medication and cream did not provide him much relief. The burning kept him awake at night and limited his walking. He could walk a block or two, and then he would have to stop and flex and move his left foot around. The examiner found that the Veteran had worsening symptoms with abnormal monofilament testing to the plantar and dorsal surface of the left foot extending up the left leg to about the mid lower leg level. The Veteran was afforded another VA peripheral nerves examination in June 2010. At the examination, the Veteran reported pain and burning on the bottom of his left foot. The examiner found that the Veteran did not have any motor function impairment. His reflexes were normal. The peripheral neuropathy of the left lower extremity was manifested by nerve dysfunction, but paralysis, neuritis, and neuralgia were absent. The disability did not have any effects on the Veteran's usual daily activities, and did not have significant effects on his occupation. The examiner found that the Veteran's peripheral neuropathy of the left lower extremity was moderate in severity. After the Veteran filed his claim for an increased rating in September 2010, he was afforded a VA general medical examination in May 2011. The Veteran reported throbbing and burning of his left foot. He stated that his medications gave him a 10% amount of relief from his symptoms. He denied any flare-ups. The Veteran had decreased dorsalis pedis pulse and decreased posterior tibial pulse. He had normal reflexes except for a hypoactive left knee jerk. He had decreased vibration to the left great toe and decreased pain/pinprick to his entire left foot. His position sense was normal. His light touch was decreased from the left knee to the left foot. He did not have dysesthesias. He had a normal motor examination. The examiner found that the peripheral neuropathy of the left lower extremity had no effects on the Veteran's usual daily activities. The peripheral neuropathy of the left lower extremity affected the Veteran's occupation with pain and decreased mobility. The Veteran was afforded another VA peripheral nerves examination in June 2014. At the examination, the Veteran denied any pain of the left lower extremity, and reported mild numbness and paresthesias of the left lower extremity. He also described burning in his left foot that occasionally woke him up at night. He had full strength and normal reflexes in his left lower extremity. His light touch/monofilament testing was decreased in his left ankle/lower leg, normal in his left knee/thigh, and absent in his left foot/toes. He had decreased position sense, cold sensation, and vibration sensation in his left lower extremity. The examiner found that the Veteran's peripheral neuropathy of the left lower extremity caused moderate incomplete paralysis of the sciatic nerve. The evidence of record establishes that the Veteran's peripheral neuropathy of the left lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve since May 13, 2011. Both the June 2010 and June 2014 VA examiners found that the Veteran's peripheral neuropathy of the left lower extremity was best characterized as moderate. The Veteran reported improvement in his symptoms since the September 2009 VA examination. Specifically, he reported some relief from his medication at the May 2011 VA examination, and described only burning of the feet occasionally awaking him at night at the June 2014 VA examination. Thus, the Board finds that the Veteran's peripheral neuropathy of the left lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve since May 13, 2011, and is appropriately rated as 20 percent disabling. 38 C.F.R. §§ 4.124a, DC 8520. Here, the Veteran had full and complete VA examinations in June 2010, May 2011, and June 2014 to determine whether there was any material change in the severity of his disability. These examinations occurred after the October 2009 rating decision, which increased the Veteran's disability rating to 40 percent, and the June 2010 and May 2011 examinations took place before the October 2012 rating decision, which reduced the Veteran's disability rating. Moreover, the Veteran was reexamined by a VA examiner in June 2014 after the reduction. These examinations showed improvement in the Veteran's peripheral neuropathy of the left lower extremity that was being sustained or maintained under the ordinary conditions of life. The evidentiary basis for the October 2012 rating decision that reduced the disability assigned for the peripheral neuropathy of the left lower extremity from 40 percent to 20 percent is contained in the June 2010 and May 2011 VA examination reports. The evidence of record establishes that the Veteran's peripheral neuropathy of the left lower extremity has been manifested by moderate incomplete paralysis of the sciatic nerve since May 13, 2011. These findings warranted a 20 percent disability rating under 38 C.F.R. § 4.124a, DC 8520. The decision to reduce the evaluation was reasonable when the overall evidence is considered. Thus, based on these examination findings present at the time of the October 2012 rating decision that reduced the peripheral neuropathy of the left lower extremity rating from 40 percent to 20 percent, the decision to reduce was consistent with the level of impairment as reflected by the competent evidence at that time. The findings from these examinations warranted a reduction in the rating as implemented in the October 2012 rating decision, to reduce the disability rating for the Veteran's peripheral neuropathy of the left lower extremity from 40 percent to 20 percent, effective May 13, 2011. See 38 C.F.R. § 3.344(c). In summary, the Board concludes that the reduction in disability rating from 40 percent to 20 percent for the peripheral neuropathy of the left lower extremity, effective May 13, 2011, was proper. Notably, the Veteran attests that his peripheral neuropathy of the left lower extremity has not improved so as to warrant a reduction to a 20 percent disability rating since May 13, 2011. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as numbness, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disability is worse than the assigned disability rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. There was clear improvement in the objectively determined neurological test findings. For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements. In sum, a clear preponderance of the evidence of record demonstrates that the reduction in the disability rating from 40 percent to 20 percent for the Veteran's peripheral neuropathy of the left lower extremity, effective May 13, 2011, was proper. The competent evidence shows that at the time of the AOJ's decision proposing reduction, the appropriate rating corresponded to the determination of a 20 percent rating. Therefore, the Veteran's appeal for restoration of a 40 percent rating for the peripheral neuropathy of the left lower extremity, effective May 13, 2011, must be denied. ORDER Reduction of the disability rating for peripheral neuropathy of the left lower extremity to 20 percent, effective May 13, 2011, was proper; restoration of a 40 percent rating since May 13, 2011, is denied REMAND The Veteran was last afforded a VA peripheral nerves examination to determine the severity of his service-connected peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities in June 2014. In a March 2015 statement and in his June 2017 Substantive Appeal, the Veteran argued that his symptoms had worsened. Where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Thus, an updated VA examination is necessary. Additionally, a remand is required to obtain a VA medical opinion to determine whether the Veteran's service-connected peripheral neuropathy of the bilateral lower extremities and bilateral lower extremities preclude him from performing substantially gainful employment. AVA medical opinion regarding the functional impairment caused by the service-connected peripheral neuropathy and the effect on his employability has not yet been obtained. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017). A VA medical opinion is necessary before the TDIU claim can be decided on the merits. Finally, the AOJ last associated with the Veteran's claims file records of his VA treatment in April 2017. On remand, efforts should be made to obtain records of any relevant VA treatment he may have undergone since that time, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since April 2017, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the claims file. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA peripheral nerves examination to determine the current severity of the service-connected peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted, and all clinical manifestations of the service-connected peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities should be reported in detail. The examiner should provide a medical opinion addressing the functional effects of the service-connected peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities on the Veteran's ability to perform the mental and physical acts (as appropriate) required for substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or age. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs