Citation Nr: 18142443 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-13 307 DATE: October 15, 2018 ORDER Reduction of a 20 percent rating for degenerative disease of left ankle is granted. A disability rating greater than 20 percent for degenerative disease of left ankle is denied. The application to reopen the previously denied claim of service connection for residuals of head and neck injury is granted. The application to reopen the previously denied claim of service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for residuals of head and neck injury is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a bilateral shoulder disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a leg disability is remanded. FINDINGS OF FACT 1. An August 2015 rating decision, which reduced the rating for degenerative disease of left ankle from 20 percent to 10 percent, failed to establish improvement. 2. Degenerative disease of left ankle has been manifested by limitation of motion, localized tenderness, and functional loss in prolonged walking and going up and down stairs; ankylosis is not demonstrated. 3. In a December 2008 rating decision, the RO declined to reopen a claim for service connection for residuals of head and neck injury. Additional evidence submitted since the RO’s December 2008 denial relates to an unestablished fact necessary to substantiate the claim. 4. In a December 2008 rating decision, the RO declined to reopen a claim for service connection for a lumbar spine disability. Additional evidence submitted since the RO’s December 2008 denial relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2015 rating decision, reducing the rating for degenerative disease of left ankle from 20 percent to 10 percent, is void ab initio. 38 C.F.R. § 3.344 (2017). 2. The criteria for a disability rating greater than 20 percent for degenerative disease of left ankle are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2017). 3. The RO’s December 2008 decision, declining to reopen the claim of service connection for residuals of head and neck injury, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017). Evidence submitted since the RO’s December 2008 denial is new and material; and the claim for service connection for residuals of head and neck injury is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The RO’s December 2008 decision, declining to reopen the claim of service connection for a lumbar spine disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2017). Evidence submitted since the RO’s December 2008 denial is new and material; and the claim for service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to September 1992. She testified during a video conference hearing before the undersigned in May 2018. During the hearing, the undersigned granted the Veteran's request for a 60-day abeyance to submit additional evidence or argument directly to the Board. To date, VA has not received any additional response from the Veteran. The Veteran stated in May 2015 that she is not applying for a total disability rating based on individual unemployability (TDIU). Accordingly, no further action regarding unemployability is required. Restoration Claim The Veteran is challenging the reduction of the disability rating assigned for degenerative disease of left ankle, from 20 percent disabling to 10 percent disabling. Here, the rating reduction was carried out in an August 2015 rating decision; and regulatory procedures set forth in 38 C.F.R. § 3.105(e) are inapplicable, in this case, because the rating reduction neither reduced nor discontinued the amount of compensation payable to the Veteran. The provisions of 38 C.F.R. § 3.344(a) and (b) are applicable in rating reductions for disabilities that have “stabilized” over a five-year period. In such cases, the evidence of record at the time of the reduction decision must demonstrate a sustained and material improvement based on the entire record of pertinent medical evidence. Lehman v. Derwinski, 1 Vet. App. 339 (1991). Ratings on account of disease subject to temporary or episodic improvement 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. In essence, a rating that has existed for five years or more may not be reduced on any one examination, unless all the evidence of record establishes that a claimant’s condition has undergone sustained material improvement. 38 C.F.R. § 3.344. The duration of a rating is measured from the effective date of assignment to the effective date of actual reduction. Brown v. Brown, 5 Vet. App. 413 (1993). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the Veteran’s condition, and not merely a difference in thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).   1. Degenerative Disease of Left Ankle Here, the Veteran contends that her service-connected degenerative disease of left ankle has not improved to warrant the reduction in rating. The 20 percent rating had been in effect from May 27, 2008, to May 10, 2015—a period longer than five years. In May 2018, the Veteran testified that the disability had not improved, even after having foot surgery three years earlier. She testified that her left ankle still hurt when walking, and that three screws were placed in her foot. In this case, a review of the August 2015 rating decision indicates that the decision review officer reduced the evaluation for degenerative disease of left ankle from 20 percent to 10 percent disabling based solely on the findings of a May 2015 VA examination and recent VA treatment records that showed chronic left ankle pain. A February 2010 VA examination report had revealed marked limited motion of the left ankle based on objective evidence of pain with active motion, limited motion, and flare-ups. In January 2013, the Veteran reported experiencing severe pain in the left ankle since leaving active service, and even when walking short distances; and reported that she no longer could complete routine tasks around the house without stopping often to rest her ankle. A January 2014 VA examination report reflects flare-ups of left ankle pain, and indicates that the Veteran walked slowly up and down steps and had difficulty walking uphill. In February 2014, the RO continued the 20 percent rating for degenerative disease of left ankle on the basis that sustained improvement had not been demonstrated. A March 2015 VA examination report reflects flare-ups of left ankle pain, and indicates that the Veteran reported that she “had to lay down until the pain calmed down,” and that she could not really do anything. The examiner noted limited motion of the left ankle, and that degenerative changes contributed to decreased ranges of motion and functional loss. There was objective evidence of pain on motion. Additional factors contributing to disability included disturbance of locomotion and an antalgic gait. In terms of functional impact, the Veteran reported that she used to walk from ten-to-twelve hours per day; and that now she could walk about only ten minutes, and then had to sit down. She reportedly drove an automatic-shift vehicle, and utilized cruise control frequently. She reported having difficulty going down stairs, and reported leading with the right foot, and then bringing down the left foot. She reported no history of ankle surgery. VA records show that the Veteran underwent elective corrective foot surgery in September 2015. The regulatory provisions applicable to rating reductions contain at least four specific requirements: (a) the entire record of examinations and the medical-industrial history must be reviewed to ascertain whether the examinations upon which the reduction is based are full and complete; (2) examinations less full and complete than those on which payments were authorized or continued cannot be used as a basis of reduction; (3) ratings on account of diseases subject to temporary and episodic improvement 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; and (4) although material improvement in the physical or mental condition is clearly reflected, the rating agency should consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Brown, 5 Vet. App. at 419 (citing 38 C.F.R. § 3.344(a); Dofflemeyer v. Derwinski, 2 Vet. Ap. 277, 280 (1992); and Schafrath v. Derwinski, 1 Vet. App. 589, 594-95 (1991)). Finally, in Schafrath v. Derwinski, the Court of Appeals for Veterans Claims (Court) explained that where a rating decision was made without observance of law in a rating reduction case, the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. After considering all the evidence, the Board finds that improvement has not been established. The complaints voiced during the examinations that resulted in the 20 percent evaluation and then the reduction were nearly the same. It appears that the earlier rating decision gave more probative weight to the reports of flare-ups than the decision that reduced. Under the circumstances of this case, we are unable to conclude that there was improvement. Furthermore, the rating decision did not clearly compare and contrast the physical changes that would establish improvement. Under these circumstances, the August 2015 rating decision denied the Veteran due process and is void ab initio. See Hayes v. Brown, 9 Vet. App. 67 (1996); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 413. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2016). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). 2. Degenerative Disease of Left Ankle VA received the Veteran’s request for an increased rating in January 2013. As shown above, her left ankle disability is assigned a 20 percent rating based on marked limitation of motion, which is the maximum rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271. The standard ranges of motion of the ankle are 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. The January 2014 VA examination report reveals that the Veteran performed repetitive-use testing; and that ranges of motion of the left ankle were to 40 degrees on plantar flexion, and to 20 degrees or greater on dorsiflexion. Although there was no objective evidence of painful motion, the January 2014 examiner did note localized tenderness or pain on palpation of the joint and soft tissue. There was no ankylosis of the ankle, subtalar, or tarsal joint. The Veteran regularly used orthotics in both shoes to help disperse weight and decrease pain from degenerative joint disease. The January 2014 examiner found that the left ankle disability did impact the Veteran’s ability to work, and that she had difficulty going up and down stairs, and walking uphill. VA records show chronic left ankle pain in March 2015. X-rays taken at that time revealed mild medial and lateral soft tissue swelling of the left ankle. The May 2015 VA examination report reveals complaints of chronic left ankle pain. Examination revealed a slight antalgic gait, favoring the left side. The Veteran also had some difficulty with tandem gait. The Veteran reported left ankle flare-ups, and having to lay down until the pain calmed down. The examiner noted that degenerative changes contributed to decreased ranges of motion, which decreased the Veteran’s ability to walk up and down stairs. Pain was noted on examination both in dorsiflexion and in plantar flexion, and pain caused functional loss. There was no ankylosis of the left ankle. The Veteran regularly used a brace to provide extra support and decrease pain from degenerative changes; she occasionally used a cane. The May 2015 examiner found that the left ankle disability did impact the Veteran’s ability to work, and that she could walk about only ten minutes and then had to sit down. As noted above, she utilized cruise control frequently while driving; and she led with the right foot, then brought down the left foot, when going down stairs. The Board finds that the overall severity, frequency, and duration of the Veteran’s symptoms are not on par with the level of severity contemplated by disability ratings greater than 20 percent under alternative diagnostic codes. Ankylosis has not been demonstrated. The overall evidence is equivalent to no more than marked limited motion of the left ankle; and supports no more than the currently assigned 20 percent disability evaluation, pursuant to Diagnostic Code 5271. Application to Reopen Claims for Service Connection VA may reopen and review claims that have been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), “new evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. 3. Residuals of Head and Neck Injury Service treatment records show that the Veteran received emergency care after falling from a forklift and striking the back of her head on a bar in May 1990. At the time the Veteran complained of a small occipital laceration, tender posterior neck muscles, pain in right medial hand, and pain over the left iliac crest. She had not lost consciousness. Following examination, assessments were multiple contusions, post-fall; and microscopic hematoma. Treatment consisted of pain medication, heat, ice, and cervical collar. Follow-up treatment later that same month revealed complaints of headaches that came and went, and tenderness in the base of the neck. The Veteran still was sore over the left iliac crest. Renal contusion versus urinary tract infection was noted. Records show that the Veteran did not return for further evaluation. In October 1995, the RO denied service connection for residuals of head and neck injury on the basis that no permanent residual disability was shown at the time of separation. The condition was considered temporary, and resolved with treatment. In December 2008, the RO declined to reopen the claim for service connection for residuals of head and neck injury on the basis that VA treatment records in May 2008 noted the onset of the Veteran’s current right-sided cervical spondylosis as approximately one-and-one-half years earlier. None of the evidence related current disability to active service. Since then, the Veteran again submitted a claim for service connection in February 2014. The additional evidence was submitted, which indicated that the Veteran reported that she had not received a separation examination from active service due to her pregnancy; and that she was given a profile for light duty for the five months before separation. VA records show that the Veteran underwent physical therapy in 2008 because of her limited ability to turn her head. Records show complaints of chronic cervical pains in February 2010, and a positive MRI report for cervical compression. The Veteran testified in May 2018 that it still hurts to turn her neck. The Board finds that the evidence added to the record since December 2008 shows currently recurring symptoms following discharge from service, and is considered new and material. Hence, the Veteran’s claim for service connection for residuals of head and neck injury is reopened. 38 U.S.C. § 5108. 4. Lumbar Spine Disability Service treatment records show that the Veteran complained of low back pain, as well as other symptoms, of four days’ duration in December 1984. Evaluation of her lower back at that time revealed full ranges of motion, and that straight leg raising was negative; further assessment could not be provided due to pregnancy. In June 1988, the Veteran complained of backaches of one month’s duration. She reported no history of trauma. Follow-up evaluation the next day revealed that the pain came and went, it first was sharp, and then it was a dull ache. Ranges of motion were within normal limits, and straight leg raising was negative. The assessment in June 1988 was muscle spasm. In June 1991, the Veteran received emergency care for back pain. At the time she was doing physical training exercises, and had jumped up and landed on her feet when her back started to hurt. She was later given a profile for ten days of no lifting and no physical training. A physical therapy consultation report, dated in March 1992, shows that the Veteran complained of low back pain of approximately ten years’ duration, with significant increase of symptoms since pregnancy. She complained of discomfort with standing for long periods of time, and with sitting unsupported. The assessment in March 1992 was low back pain secondary to postural changes. In October 1995, the RO denied service connection for a lumbar spine disability on the basis that no chronic condition was shown in active service or after her release from active service. In December 2008, the RO declined to reopen the claim for service connection for a lumbar spine disability on the basis that VA treatment records in July 2002 noted a low back injury that year while playing softball; however, no chronic condition (lasting more than three months) was shown, and none of the evidence related current intermittent low back condition to active service. Nor was there evidence of any chronic low back condition or low back injury in active service. Since then, the Veteran again submitted a claim for service connection in February 2014. The additional evidence was submitted, which indicated that the Veteran reported experiencing severe back pain since active service; and that she regularly received a “trigger shot” every sixty days for back pain. Social Security records, dated in June 2014, show a primary diagnosis of back disorder (discogenic and degenerative), and a secondary diagnosis of osteoarthrosis and allied disorders. Private records, also dated in June 2014, show complaints of difficulties with lower back since 2004; and include a diagnosis of low back pain. The Board finds that the evidence added to the record since December 2008 shows symptoms following discharge from service, as well as current disability; and is considered new and material. Hence, the Veteran’s claim for service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108. REASONS FOR REMAND 5. Residuals of Head and Neck Injury (Reopened Claim) The Veteran contends that service connection for residuals of head and neck injury is warranted on the basis that she had fallen off a forklift in active service in May 1990; and, thereby, hurt her neck and incurred a small hematoma. The Veteran is competent to describe her symptoms. A July 1995 VA examination includes an impression of injury to the occipital area secondary to fall with intermittent headaches; X-rays were negative, and neck ranges of motion were normal. Since then, VA records include findings of chronic cervical pain and a diagnosis of cervical spondylosis. The Board finds that an examination is needed to determine whether the Veteran has current residuals of head and neck injury that either had their onset during service or are related to her active service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4) (2017). 6. Lumbar Spine Disability (Reopened Claim) The Veteran contends that service connection for a lumbar spine disability is warranted on the basis that the onset of her low back pain was during active service; and that she continues to have low back pain. The Veteran is competent to describe her symptoms. The July 1995 VA examination report notes the gradual onset of low back pain during pregnancy in 1992; and includes an impression of low back pain secondary to lumbosacral strain. Under these circumstances, the Board finds that an examination is needed to determine whether the Veteran has a current lumbar spine disability that either had its onset during service or is related to her active service. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4) (2017). 7. Bilateral Shoulder Disability 8. Bilateral Hip Disability 9. Leg Disability Here, the evidence of record reveals that the Veteran has a disability affecting the right shoulder, and that she was wearing a splint on the left lower leg in September 2015. In May 2018, the Veteran testified that a recent MRI revealed cervical compression, which was pushing on her spinal cord and resulted in “pins and needles” down her arms; and made it uncomfortable to sleep on her side. The Veteran also testified that she had two torn rotator cuff muscles. The Veteran testified that her service-connected degenerative disease of left ankle affected her walking, and resulted in a limp and caused problems with her hips and legs; and that she had difficulty climbing steps. The Board cannot make a fully-informed decision on the issues of service connection for each of these claimed disabilities because no VA examiner has opined whether each of the Veteran’s disabilities is related to her active service; or whether each of the Veteran’s disabilities is part and parcel of, or related to the injuries in service which resulted in the Veteran’s head, neck, elbow, and ankle disabilities. The Board cannot resolve these matters without further medical clarification. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4) (2017). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2015 to the present. 2. Afford the Veteran a VA examination(s) to identify all current disability underlying the Veteran’s (a) current complaints of residuals of head and neck injury, and (b) current complaints of low back pain; and the likely etiology of each disease or injury. (a) For any current disability identified, the examiner(s) is requested to determine whether it is at least as likely as not (50 percent probability or more) that it is the result of disease or injury incurred during active service—specifically, to include the in-service fall off a forklift in May 1990; and the Veteran’s account of continuing symptoms of headaches and neck pain since then. (b) For any current disability identified, the examiner(s) is requested to determine whether it is at least as likely as not (50 percent probability or more) that it is the result of disease or injury incurred during active service—specifically, to include complaints of low back pain as noted in service treatment records; and the Veteran’s account of continuing symptoms of low back pain since then. (c) For any current disability identified, the examiner(s) is requested to determine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s service-connected residuals of right and left elbow fractures (or other service-connected disability) (1) caused or (2) aggravated (i.e., permanently increased in severity beyond the natural progress) any current disability identified, beyond the natural progress. The examiner(s) should provide a rationale for the opinions. The examiner(s) is asked to explain the reasons behind any opinions offered. The examiner(s) is also reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disabilities affecting the shoulders, hips, and legs. For each disability, the examiner must opine whether it is at least as likely as not related to an in-service injury or disease—to include the fall from a forklift in May 1990, or the left ankle contusion in December 1984 or left ankle sprain in December 1991. If other causes are more likely, those should be noted.   4. After the above development, and any additionally indicated development, has been completed, readjudicate the claims on appeal. If the benefit sought is not granted, furnish a supplemental statement of the case (SSOC) and then return the appeal to the Board, if otherwise in order. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary C. Suffoletta