Citation Nr: 18140284 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-10 145 DATE: October 2, 2018 ORDER Entitlement to a restoration of a 10 percent rating for service-connected peripheral neuropathy of the left upper extremity, effective September 1, 2016, is granted. Entitlement to a restoration of a 10 percent rating for service-connected peripheral neuropathy of the right upper extremity, effective September 1, 2016, is granted. Entitlement to a restoration of a 10 percent rating for service-connected peripheral neuropathy of the left lower extremity, effective September 1, 2016, is granted. Entitlement to a restoration of a 10 percent rating for service-connected peripheral neuropathy of the right lower extremity, effective September 1, 2016, is granted. REMANDED Entitlement to a rating in excess of 10 percent to peripheral neuropathy left upper extremity is remanded. Entitlement to a rating in excess of 10 percent to peripheral neuropathy right upper extremity is remanded. Entitlement to a rating in excess of 10 percent to peripheral neuropathy left lower extremity is remanded. Entitlement to a rating in excess of 10 percent to peripheral neuropathy right lower extremity is remanded. Entitlement to rating in excess of 20 percent to diabetes mellitus, type II (DM) is remanded. FINDING OF FACT An improvement in the Veteran’s service-connected peripheral neuropathy of the right and left upper extremities and the right and left lower extremities was not adequately demonstrated by the evidence of record at the time of the June 2016 decision reducing the ratings for those disabilities from 10 percent to 0 percent, each, effective September 1, 2016. CONCLUSIONS OF LAW 1. The 10 percent rating for peripheral neuropathy of the left upper extremity was not properly reduced and is restored, effective September 1, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8515 (2018). 2. The 10 percent rating for peripheral neuropathy of the right upper extremity was not properly reduced and is restored, effective September 1, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8515 (2018). 3. The 10 percent rating for peripheral neuropathy of the left lower extremity was not properly reduced and is restored, effective September 1, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8520 (2018). 4. The 10 percent rating for peripheral neuropathy of the right lower extremity was not properly reduced and is restored, effective September 1, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1966 to January 1968, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Rating Reductions – Peripheral Neuropathy In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence shows an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. VA regulations provide for specific notice requirements in instances where a reduction in rating is considered. 38 C.F.R. § 3.105 (e) (2018). When a rating reduction is considered and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. 38 C.F.R. § 3.105 (e) (2018). A proposed rating decision should set forth all of the material facts and reasons for the proposed reduction. 38 C.F.R. § 3.105 (e) (2018). The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. 38 C.F.R. § 3.105 (e) (2018). A reduction of a rating generally must be supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a) (2012); Brown v. Brown, 5 Vet. App. 413 (1993). The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical history to ascertain whether the recent examination was full and complete. 38 C.F.R. § 3.344 (a) (2018). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (2018). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b) (2018). The provisions of 38 C.F.R. § 3.344 (a) and 38 C.F.R. § 3.344 (b) apply to ratings which have continued for long periods at the same level, for 5 years or more. 38 C.F.R. § 3.344 (2018). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in those disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (c) (2018), Collier v. Derwinski, 2 Vet. App. 247 (1992). Here, the Veteran’s peripheral neuropathy of the left upper, right upper, left lower, and right lower extremities were service connected in May 2009 effective February 13, 2009, or for a period of more than five years. Consequently, these rating could not be reduced without compliance with the provisions of 38 C.F.R. § 3.344 (a) and (b) regarding stabilization of ratings. See 38 C.F.R. § 3.344 (c); Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). The stabilization of ratings regulation provides that rating agencies will handle cases affected by change of medical findings or diagnosis 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 examinations and 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 on 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, 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); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown (Kevin) v. Brown, 5 Vet. App. 413, 416-21 (1993). The April 2009 VA examination used to initially grant service connection and rate the Veteran’s peripheral neuropathy reflects the medical opinion concerning the severity of the Veteran’s disabilities. The Veteran’s peripheral neuropathy was noted to affect all four extremities, and was manifested by weakness; numbness; paresthesias; dysesthesias; and pain. No motor function impairment was noted. The Veteran had decreased light touch sensation in all four extremities. A June 2012 VA examination reflects the Veteran’s reports of the inability to feel vibrations below the right knee and at or below the left knee. Upon examination, het had good key pinch, tip pinch, grip strength, finger spread, and ok sign on distraction testing. No atrophy or edema was shown. There was no weakness of foot eversion, inversion, dorsiflexion, or plantarflexion. There was negative Tinel sign at the wrist, elbow, medial malleolus, and fibular head bilaterally. There was negative Phalens at 30 seconds. The Veteran was noted to be very well muscled. The Veteran had a normal cerebellar examination. The Veteran had normal motor examination for all four extremities. He had an abnormal sensory examination. After examination, the examiner concluded that the Veteran had an abnormal examination. The examiner noted the Veteran’s peripheral neuropathy in 2009, and indicated the Veteran had diabetic neuropathies. At that time, the examiner did not provide a diagnosis. A July 2012 VA examination addendum clarified the June 2012 statement that the VA examination “failed to note the nerves affected by the Veteran’s peripheral neuropathy” to all extremities. The addendum states that the examiner did not “note the nerves affected because there was NO convincing evidence of a generalized peripheral neuropathy. [The Veteran’s] lower motor and sensory nerves are basically intact,” and that the Veteran “does have evidence of bilateral carpal tunnel syndrome.” The examiner then diagnosed carpal tunnel syndrome. An October 2013 VA examination reflects the Veteran’s reports of poorly controlled diabetes, and diagnoses of erectile dysfunction and peripheral neuropathy. The Veteran reported he was right hand dominant. Examination showed the Veteran had symptoms attributable to diabetic peripheral neuropathy in all four extremities. The symptomatology varied between moderate to severe for all four extremities. Examination showed abnormal strength, deep tendon reflexes, light touch/monofilament, position sense, and cold sensation testing. No muscle atrophy was shown. The examiner noted that the Veteran had diabetic peripheral neuropathy of the upper extremities manifested by mild incomplete paralysis bilaterally. The examiner also noted that the Veteran had diabetic peripheral neuropathy of the lower extremities manifested by incomplete paralysis of the sciatic nerve bilaterally. The Veteran was noted to have lost grip strength bilaterally, and to fatigue easily when walking. The examiner stated that the Veteran’s peripheral neuropathy was progressing, secondary to his diabetes, and was becoming progressively worse. His peripheral neuropathy affected his ability to write, and caused pain in the legs and arm limiting the Veteran’s ability to fully function. A January 2016 VA examination indicated the Veteran had a diagnosis of diabetic peripheral neuropathy in 2009, but that it was not noted in 2012 and 2016. The examiner noted that the Veteran did not have any symptoms attributable to diabetic peripheral neuropathy. Upon examination, the examiner found the Veteran had normal strength in all four extremities. The examiner found the Veteran had abnormal light touch/monofilament testing in all four extremities. The examiner noted absent cold sensation testing in both lower extremities. No muscle atrophy was shown. The Veteran did not have trophic changes attributable to diabetic peripheral neuropathy. The examiner then found the Veteran did not have diabetic peripheral neuropathy but noted abnormal test results for all four extremities. The examiner then stated the Veteran had normal motor and sensory nerves in the lower extremities, had normal left median sensory nerve testing, and improvement in carpal tunnel syndrome bilaterally. A January 2016 VA examination addendum indicates the examiner clarified whether the Veteran’s current diagnosis of diabetic peripheral neuropathy affecting all extremities was in error. The examiner stated that the Veteran did not show evidence of a generalized peripheral neuropathy, but rather the reported symptoms “may be a result of psoriatic arthritis.” Finally, the February 2016 rating decision which proposed a reduction for the Veteran’s peripheral neuropathy indicates the RO determined that as a result of the Veteran’s VA examinations, the Veteran did not have diabetic peripheral neuropathy and that a reduction was proper. The Board notes that even if true, this cannot alone be a basis for reduction. Following a review of the record, the Board finds, after resolving all doubt in the Veteran’s favor, that the reduction of peripheral neuropathy of the left upper, right upper, left lower, and right lower extremities from 10 percent to noncompensable was not proper. As to the June 2012 VA examination, the examiner noted historic diagnoses of diabetic peripheral neuropathies for all four extremities, and noted abnormal sensory examinations. Then, a July 2012 addendum inconsistently stated the Veteran did not have peripheral neuropathy. Following the June 2012 VA examination, the Veteran was afforded another VA examination in October 2013. At that time, the examiner noted the Veteran’s peripheral neuropathy was becoming progressively worse. Finally, the January 2016 VA examination indicated that the Veteran had no symptomatology of peripheral neuropathy. However, the examination inconsistently showed abnormal testing in all four extremities. It is not clear whether such provisions support an actual reduction of an assigned rating, particularly as in the case here where the rating has been in effect for more than 5 years and the stabilization provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable. The Board also notes that the evidence of record cast doubt upon whether there was a permanent improvement in this disabilities under the ordinary conditions of life. Therefore, the Board finds there is not sufficient evidence to show actual improvement in the Veteran’s ability to function. In view of the foregoing, the Board finds that the evidence of record does not reflect that at the time of the reduction the Veteran had the type of improvement in his service-connected diabetic peripheral neuropathy of the left upper, right upper, left lower, and right lower extremities that would warrant a reduction in the assigned disability ratings, particularly as they had been in effect for more than 5 years. Accordingly, after resolving all doubt in the Veteran’s favor, the Board finds that the restoration of the 10 percent disability ratings for the Veteran’s diabetic peripheral neuropathy of the left lower, right lower, left upper, and right lower extremities is warranted. REASONS FOR REMAND Increased Ratings – Peripheral Neuropathy The Board finds that additional development is required before the remaining claims on appeal are decided. With regard to the Veteran’s claim of entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower, right lower, left upper, and right upper extremities, the Board notes that the Veteran was afforded VA examinations for those disabilities in June 2012, October 2013, and January 2016. At those times, the examiners provided inconsistent information regarding the severity of the Veteran’s disabilities. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from his service-connected peripheral neuropathy of the right and left upper and right and left lower extremities. Increased Rating - DM With regard to his claim for an increased rating for DM, the Board notes that the Veteran was afforded a VA examination on October 2013. At that time, the examiner indicated that the Veteran’s DM required regulation of activities. In a December 2013 addendum, the VA examiner stated the Veteran did not require regulation of activities. The Veteran was afforded another VA examination in January 2016. At that time, the examiner stated the Veteran required regulation of activities. In a February 2016 addendum, the VA examiner stated that the Veteran did not meet the schedular requirements for the need of regulation of activities to control his DM. The Board finds the findings of the October 2013 and January 2016 VA examinations are not adequate for adjudication purposes. In this regard, the VA examination results are internally inconsistent and do not provide an adequate evaluation of the severity of the Veteran’s DM. Therefore, the Board finds that a new VA examination is warranted to determine the current level of severity of all impairment resulting from the Veteran’s DM. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected peripheral neuropathy of the left lower extremity, right lower extremity, left upper extremity, and right upper extremity. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected DM. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. 4. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel