Citation Nr: 1803857	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  13-03 931	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether the reduction of a 50 percent rating for a low back disability to 20 percent disabling effective February 1, 2012, was proper. 

2.  Entitlement to service connection for a right knee disorder. 

3.  Entitlement to an increase rating for a low back disability rated as 50 percent disabling.

4.  Entitlement to an initial rating in excess of 10 percent for right sciatica.

5.  Entitlement to an increase rating for left sciatica rated as 10 percent disabling.

6.  Entitlement to an increase rating for diabetes mellitus rated as 20 percent disabling.

7.  Entitlement to an initial rating in excess of 30 percent for a major depressive disorder.

8.  Entitlement to an effective date earlier than January 31, 2012, for the grant of service connection for a major depressive disorder.

9.  Entitlement to an effective date earlier than February 1, 2012, for the grant of a 50 percent rating for a low back disability.

10.  Entitlement to an effective date earlier than February 1, 2012, for the grant of a total rating based on individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Molly Steinkemper, Attorney at Law


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from February 1968 to February 1971, which service included service in the Republic of Vietnam from April 1969 to February 1971.

This matter comes before the Board of Veterans' Appeals (Board) from June 2011, June 2013, February 2014, and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

All the above issues other than the restoration claim are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The regulatory requirements for a proper reduction of the 50 percent rating for a low back disability were not observed.  


CONCLUSION OF LAW

The reduction of a 50 percent rating for a lumbar spine disorder to 20 percent disabling effective February 1, 2012, was not proper and the rating is restored.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.105, 4.1 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Given the fully favorable decision contained herein, the Board finds that discussion of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), notice and assistance provided to the Veteran is unnecessary, since any deficiency constitutes harmless error.  

The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines.  See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the veteran's condition).  

Specifically, where a reduction in the evaluation of a service-connected disability or employability status is considered warranted, and the reduction would result in the 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; the beneficiary must be notified at his or her last address of record of the action contemplated and furnished detailed reasons therefore and must be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level.  38 C.F.R. § 3.105(e).  However, 38 C.F.R. § 3.105(e) does not apply if the rating reduction does not reduce the veteran's net compensation.  See VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days' notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran).  

In this regard, the Board notes that a June 2013 rating decision assigned the Veteran's low back disability a 50 percent rating, effective February 1, 2012.  An August 2015 rating decision reduced the rating for the low back disability to 20 percent effective from February 1, 2012.  

With the above criteria in mind, the Board first finds that 38 C.F.R. § 3.105(e) applies to the August 2015 rating reduction because it reduced the Veteran's net compensation-his combined rating changed from a 80 percent before the reduction to a 70 percent after the reduction given the fact that he has other service connected disabilities.  See 38 C.F.R. § 4.25 (2017).

The Board next finds that the procedural guidelines found at 38 C.F.R. § 3.105(e) were not followed by the RO.  The Board has reached this conclusion because the Veteran was not first provided notice of the proposed reduction and 60 days for the presentation of new evidence to show that compensation should be continued at the present level.  38 C.F.R. § 3.105(e).  The appropriate remedy is to restore the 50 percent schedular evaluation for the Veteran's low back disability effective from February 1, 2012.  




ORDER

The reduction in the rating for a low back disability from 50 to 20 percent effective February 1, 2012, was not proper and the 50 percent rating is restored.


REMAND

In order to avoid any additionally delay in adjudicating the appeal, the Board in a November 2017 letter asked the Veteran if he would waive AOJ review of additional pertinent evidence that was associated with the record since the most recent statements of the case (SOCs) and supplemental statement of the case (SSOC).  See 38 C.F.R. § 20.1304(c) (2017).  The November 2017 waiver request letter specifically notified the Veteran that his appeal would be remanded if a waiver was not received from him in 45 days.  Therefore, the Board finds that it must remand these issues for AOJ review.  See 38 C.F.R. § 19.31 (2017) (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued).

As to all the remaining issues on appeal, the Board also finds that while the appeal is in remand status any outstanding VA and private treatment records should be obtained and associated with the record on appeal.  See 38 U.S.C.A. § 5103A(b) (West 2014).

As to the claim of service connection for a right knee disorder, the Board finds that the record raises the question of whether a right knee disorder is secondary to his service-connected low back disability and/or bilateral sciatica.  See 38 C.F.R. § 3.310 (2017).  Therefore, the Board finds that while the appeal is in remand status the Veteran should be provided with a VA examination to obtain a needed etiology opinion as to this question despite the evidence of record showing he also sustained a post-service right knee injury at work in 2007 (see, e.g., treatment records from Dr. Mathew D. Collard dated in December 2007; BarnesCare West dated in December 2007).  See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006).
As to the claims for higher evaluations for right and left sciatica, diabetes mellitus, and a major depressive disorder, given the above development the Board finds that while these issues are in remand status the Veteran should be provided with new VA examinations to ascertain the current severity of his disabilities.  See 38 U.S.C.A. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). 

As to the claim for an earlier effective date for the grant of a TDIU, the Board finds that a remand is also required because adjudication of this claim is inextricably intertwined with the above claims.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).

Accordingly, these issues are REMANDED to the AOJ for the following actions:

1.  Associate with the claims file the Veteran's post-February 2015 treatment records from the St. Louis VA Medical Center. 

2.  After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records.

3.  Then schedule the Veteran for a VA examination to determine the origins or etiology of his right knee disorder.  The claims folder should be made available to and reviewed by the examiner.  After a review of the claims file and an examination of the Veteran, the examiner should provide answers to the following questions:

i.  As to each diagnosed right knee disorder, is it at least as likely than not that it was caused by the Veteran's service-connected low back disability and/or bilateral sciatica?

ii.  As to each diagnosed right knee disorder, is it at least as likely than not it was aggravated (i.e., permanently worsened) to any degree by his service-connected low back disability and/or bilateral sciatica?

The examination report must include a complete rationale for all opinions expressed.  

If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

4.  Then schedule the Veteran for a VA examination to determine the current severity of his right and left sciatica.  The claims folder should be made available to and reviewed by the examiner.  After an examination of the Veteran, the examiner should provide a detailed report summarizing the severity of his service-connected disabilities.  

In providing the requested summary, the examiner should take into account the fact that the Veteran is credible to report on what he can feel and see even when not documented in her medical records.  

The VA examination report must include a complete rationale for all opinions expressed.  

5.  Then schedule the Veteran for a VA examination to determine the current severity of his diabetes mellitus.  The claims folder should be made available to and reviewed by the examiner.  After an examination of the Veteran, the examiner should provide a detailed report summarizing the severity of his service connected disability.  

In providing the requested summary, the examiner should take into account the fact that the Veteran is credible to report on what he can feel and see even when not documented in her medical records.  

The VA examination report must include a complete rationale for all opinions expressed.  

6.  Then schedule the Veteran for a VA examination to determine the current severity of his major depressive disorder.  The claims folder should be made available to and reviewed by the examiner.  After an examination of the Veteran, the examiner should provide a detailed report summarizing the severity of his service connected disability.  

In providing the requested summary, the examiner should take into account the fact that the Veteran is credible to report on what he can feel and see even when not documented in her medical records.  

The examination report must include a complete rationale for all opinions expressed.  

7.  After undertaking any other needed development, adjudicate the appeal.  If any benefit sought on appeal is not granted in full, the Veteran and his representative should be provided a SSOC that includes notice of all relevant the laws and regulations and citation to all evidence added to the claims file since the most recent SOCs & SSOC, and a reasonable period of time should be allowed for response before the appeal is returned 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).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).




______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs