Citation Nr: 18146080 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-39 156 DATE: October 30, 2018 ORDER Entitlement to an initial rating in excess of 20 percent disabling for lumbar spine disability is denied. Entitlement to an initial compensable rating for headaches prior to November 28, 2017, is denied. Entitlement to a 30 percent disability rating, but no higher, for headaches as of November 28, 2017, is granted subject to controlling regulations applicable to the payment of monetary benefits. The reduction in evaluation of bilateral foot condition from 30 percent, effective May 1, 2016, was proper. Effective May 1, 2016, entitlement to a 10 percent disability rating for the bilateral foot condition is granted. REMANDED Entitlement to service connection, to include on a secondary basis, for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for left hand weakness is remanded. Entitlement to an initial compensable rating for left thumb disability is remanded. FINDINGS OF FACT 1. During the entire period on appeal, the competent medical evidence of record shows the Veteran’s lumbar spine disability limited by forward flexion to, at worst, 40 degrees, and intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of 2 weeks during the past 12 months. 2. Prior to November 28, 2017, the Veteran’s service-connected headache condition was not manifested by migraine or non-migraine variants characteristic of prostrating attacks. 3. As of November 28, 2017, the Veteran’s service-connected headache condition was manifested by non-migraine variants characteristic of prostrating attacks occurring more than once per month, but not productive of severe economic inadaptability. 4. At the time of the February 2016 rating reduction in evaluation of the Veteran’s bilateral foot condition from 30 percent disabling to non-compensable, there was a showing of improvement in disability evidence by symptoms relieved by use of arch supports. 5. The February 2016 rating decision reducing the disability evaluation assigned to the Veteran’s service-connected bilateral foot disability was based on a full evidentiary record; thus, there was a clear showing that symptoms had improved such that he no longer met the criteria for a 30 percent rating and the rating reduction was implemented with observing applicable law and regulations. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent disabling for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5237, 5243 (2018). 2. The criteria for an initial compensable rating for headaches, prior to November 28, 2012, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, DC 8100 (2018). 3. As of November 28, 2012, the criteria for a 30 percent rating for headaches, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, DC 8100 (2018). 4. The reduction in evaluation of bilateral foot condition from 30 percent disabling, effective May 1, 2016, was proper; a 10 percent rating is awarded that date. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.105, 3.159, 3.344, 4.71a, DC 5276 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2004 to January 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from August 2015 (service connection for OSA; increased rating for left thumb, headaches), February 2016 (rating reduction for bilateral foot), July 2016 (increased rating for lumbar spine) and October 2016 (service connection for left hand weakness) rating decisions by a Department of Veterans Affairs Regional Office (RO). By way of history, a February 2015 rating decision, in part, granted service connection for bilateral foot, lumbar spine, headaches and left thumb disabilities. In June 2015, the Veteran filed a timely notice of disagreement (NOD) with regard to the ratings assigned for his headache and bilateral foot conditions. However, in a July 2015 VA Form 27-0820, the Veteran withdrew his NOD with regard to his headache and bilateral foot increased rating claims. Thereafter, an August 2015 rating decision continued the evaluation assigned for headache condition and proposed a rating reduction for the bilateral foot condition. The Veteran filed a timely NOD in August 2015 which identified the August 2015 rating decision. The NOD further identified the rating assigned for the service-connected headache condition and the proposed rating reduction for the bilateral foot condition. Accordingly, with regard to the increased rating claim for headache condition, that issue is properly on appeal from the August 2015 rating decision. Additionally, a February 2016 rating decision reduced the rating assigned for the bilateral foot condition effective May 1, 2016, which the Veteran appealed in a February 2016 NOD. An August 2016 statement of the case (SOC) addressed the issue of whether the rating reduction was proper and the Veteran perfected his appeal in an August 2016 VA Form 9, Substantive Appeal. Accordingly, the Board finds that the bilateral foot issue on appeal is more properly characterized as a rating reduction issue. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (where a veteran’s disability rating is reduced, the Board must determine whether the reduction of the veteran’s rating was proper, and not phrase the issue in terms of whether the veteran was entitled to an increased rating); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (noting the difference between rating-increase claims and rating-reduction claims); see also Brown v. Brown, 5 Vet. App. 413, 421 (1993) (when the RO reduces a disability rating, the Board is required to establish that rating reduction rather than reinstatement of rating is warranted). The Board further notes that in March 2016, the Veteran filed an increased rating claim for his bilateral foot condition. To date, the Agency of Original Jurisdiction (AOJ) has not adjudicated that issue on appeal and it is referred for appropriate action. The Board observes that with regard to the increased rating claim for lumbar spine disability decided below, additional VA treatment records were received following the last adjudication by the RO in the August 2016 SOC. The Board has reviewed these records and observes that they are not pertinent to that issue decided below. The Board further observes that with regard to the headache increased rating claim decided below, additional medical records, including VA treatment records and a private disability benefits questionnaire (DBQ), were received following the last adjudication by the RO in the August 2016 SOC. The Board has reviewed the VA medical records and observes that they are not pertinent to the issue decided. Additionally, with regard to the submitted December 2017 DBQ, the Veteran submitted a waiver of regional office consideration of that evidence. The Board also notes that an October 2017 letter notified the Veteran of adjustments to his monthly entitlement amounts based on removal of a dependent. In October 2017, the Veteran filed a NOD in regard to the change in dependency status. The VA acknowledged receipt of the NOD in an October 2017 notification. However, the record shows that the AOJ has not issued a SOC addressing this issue. The AOJ is clearly aware of the NOD; accordingly, that claim is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Lastly, the Board notes that the issues of entitlement to service connection for tinnitus and entitlement to an increased rating for posttraumatic stress disorder were addressed in a separate Board decision dated October 25, 2018 under a separate docket number, 16-26 044. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Lumbar Spine Disability The Veteran filed a service connection claim for lumbar spine disability in January 2014. That claim was granted in a February 2015 rating decision and assigned a 20 percent evaluation effective January 31, 2014, the day following the Veteran’s separation from service. The Veteran asserts entitlement to an initial rating in excess of 20 percent. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities provides that a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Initially, the Board notes that the RO has rated the Veteran’s lumbar spine disability pursuant to DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, this appears incorrect. A review of the February 2015 rating decision shows that the assigned 20 percent evaluation was based on forward flexion greater than 30 degrees but not greater than 60 degrees. The rating decision further noted that the lumbar spine disability was not manifested by any incapacitating episodes during the past 12 months. Therefore, according to the February 2015 rating decision, the proper DC would be 5237, lumbosacral strain, with a rating based on the General Rating Formula for Diseases or Injuries of the Spine. Additionally, the Board notes that the RO has provided separate ratings for bilateral radiculopathy related to the service-connected lumbar spine disability. The Veteran has not appealed those ratings and, therefore, they are not on appeal. Accordingly, those ratings will not be further addressed by the Board. In August 2014, the Veteran was assessed with chronic low back pain and lumbago. He was noted to have limited range of motion (ROM) and tenderness to palpation to the L4-L5 region. An August 2014 radiological study revealed no significant findings for the lumbar spine including no instability on flexion or extension, normal alignment, normal mineralization, maintained vertebrae height, preserved disc height, and normal paraspinal soft tissues. In September 2014, a VA physician noted no back pain but did note decreased ROM of the spinal column. The Veteran initially underwent a VA examination in November 2014. The Veteran was diagnosed with lumbosacral strain and IVDS. The Veteran reported flare-ups that limited his ability to bend his back. ROM testing revealed forward flexion to 45 degrees with painful motion beginning at 40 degrees, extension to 25 degrees with painful motion beginning at 25 degrees; bilateral lateral rotation to 25 degrees with painful motion beginning at 25 degrees; and bilateral lateral rotation to 20 degrees with painful motion beginning at 20 degrees. Repetitive-use testing did not change the ROM results. The examiner did find that the Veteran had functional loss due to less movement than normal, pain on movement, interference with sitting, standing and/or weight bearing, and lack of endurance. No muscle spasms were found to result in an abnormal spinal contour or abnormal gait. Muscle strength and reflex testing was normal. Sensory testing revealed decreased sensation to light touch in the bilateral feet/toes. Imaging studies did not reveal a diagnosis for arthritis. No neurological abnormalities associated with the lumbar spine disability were identified. At a July 2015 VA examination, the Veteran’s lumbar spine disability was manifested by forward flexion to 65 degrees with painful motion beginning at 65 degrees, extension to 20 degrees with painful motion beginning at 20 degrees, bilateral lateral flexion to 25 degrees with painful motion beginning at 25 degrees, and bilateral lateral rotation to 30 degrees with painful motion beginning at 30 degrees. Repetitive-use testing did not change ROM results. Additionally, the Veteran denied any flare-ups. The examiner did find functional loss due to less movement than normal and pain on movement. No guarding or muscle spasm was found. Muscle strength and reflex testing was normal. In addition, the examiner noted normal sensory testing. The examiner further found that the lumbar spine disability was not manifested by IVDS. No neurological abnormalities associated with the lumbar spine disability were identified. A September 2015 VA medical record noted limited ROM due to age related degeneration. A May 2016 imaging study was negative for a back disability. The Veteran last underwent a VA examination in July 2016. The lumbar spine disability was found manifested by forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 5 degrees. Pain was noted during all ROM testing and was further noted to cause functional loss. Repetitive-use testing did not result in a change in ROM. The Veteran did report flare-ups described “like someone was putting their fist in my back,” and functional loss in which he reported stiffness and a change in ROM. The examiner was unable to state whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time without resorting to mere speculation since the examination was not being performed following repeated use over a period of time or during a flare-up. Guarding and/or muscle spasm was found to result in an abnormal spinal contour. Muscle strength testing was positive for active movement against some resistance in hip, knee, ankle and great toe. No muscle atrophy was found. Reflex and sensory testing was normal. No ankylosis was found. The examiner additionally noted the Veteran had IVDS which did not require prescribed bed rest in the past twelve-months. No neurological abnormalities associated with the lumbar spine disability were identified. In his July 2016 NOD, the Veteran asserted that the rating for his lumbar spine disability was incorrect because his back symptoms had worsened, including worsening ROM. In addition, the Veteran reported that his flare-ups had been occurring more often and that he had had an incapacitating episode which lasted for almost 2-weeks within the past 12-months. Finally, in his August 2016 VA Form 9, Substantive Appeal, the Veteran asserted that during flare-ups, his flexion was limited. After a review of the evidence of record, the Board finds that during the entire period on appeal, a rating in excess of 20 percent is not warranted. The Board notes that since filing his claim in January 2014, the ROM of the Veteran’s lumbar spine disability has been shown manifested by forward flexion to, at worst, 40 degrees. In this regard, the 40 degrees of flexion takes into account the reported point where painful motion reportedly began during the initial November 2014 VA examination. Subsequent VA examinations have shown improvement in ROM including forward flexion to 65 degrees in July 2015, and forward flexion to 50 degrees in July 2016. The Board recognizes the Veteran’s July 2016 NOD in which he asserted worsening symptoms, including worsening ROM. In this regard, the Board notes that the July 2016 NOD was submitted less than two weeks following his July 2016 VA examination. Accordingly, given the close proximity in time between the VA examination and the Veteran’s statements, the Board finds that the July 2016 VA examination adequately documents the severity of the Veteran’s lumbar spine disability during that time period. Importantly, since the July 2016 NOD, the Veteran has not further indicated ROM that had further worsened in severity; only a general report that his ROM was limited. Additionally, as noted above, the July 2016 VA examination demonstrates improved ROM as compared to the November 2014 VA examination. The Board has also considered assigning higher disability ratings pursuant to 38 C.F.R. § 4.40 and 4.45. In this regard, the Board acknowledges the Veteran’s reported complaints of pain and painful motion. However, the Veteran’s lumbar spine disability has been rated based on limitation of motion (i.e. functional loss) caused by pain. As such, the Board finds that the currently assigned disability rating takes into account functional limitations based on painful motion and there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Accordingly, during the entire period on appeal, the highest rating available is 20 percent. A higher 40 percent evaluation is not warranted as the Veteran’s lumbar spine disability has not been shown manifested by forward flexion limited to 30 degrees or less, or ankylosis. Turning to rating the Veteran’s lumbar spine disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that the medical evidence of record has shown conflicting diagnosis for IVDS. While the November 2014 and July 2016 VA examiners diagnosed the Veteran with IVDS, the condition was not shown to have resulted in any incapacitating episodes over the preceding 12 months. Additionally, the July 2015 VA examiner found that the lumbar spine disability was not manifested by IVDS. While the Board recognizes the Veteran’s July 2016 NOD in which he reported having had an incapacitating episode which lasted for almost 2-weeks within the past 12-months, even if the Veteran’s lumbar spine disability was rated based on that statement, the highest rating available would be 20 percent. Accordingly, rating the Veteran’s lumbar spine disability based on IVDS would not result in a more beneficial outcome. Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of an initial disability rating in excess of 20 percent. As the preponderance of the evidence is against the claim the benefit-of-the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Headaches The Veteran filed a service connection claim for headaches in January 2014. A February 2015 rating decision granted service connection for headaches and assigned non-compensable rating pursuant to 38 C.F.R. § 4.124a, DC 8100. The Veteran asserts entitlement to an initial compensable rating. Specifically, the Veteran asserts that his migraine headaches more nearly approximated a 30 percent disability rating based on frequent episodes of headaches every other day with throbbing headaches at least twice per month. Under DC 8100, headaches are assigned a non-compensable rating with less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating,” nor has the Court. By way of reference, the Board notes that, according to Dorland’s Illustrated Medical Dictionary 1523 (32nd ed. 2012), “prostration” is defined as “extreme exhaustion or powerlessness.” The rating criteria also do not define “severe economic inadaptability;” however, nothing in DC 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). At a November 2014 VA Gulf War examination, the Veteran was diagnosed with tension headaches. Headaches were reported “nearly every day” with pain located in the temples with each episode lasting 10-60 minutes. The headaches were not found manifested by characteristic prostrating attacks. The Veteran underwent another VA examination in July 2015. The examiner noted that the Veteran’s diagnosed tension headaches were symptomatic of pulsating or throbbing pain on both sides of his head. The examiner further noted a headache condition associated with sensitivity to sound. The Veteran reported that the duration of his headaches was less than one day. The headache condition was not found manifested by migraine or non-migraine variants characteristic of prostrating attacks. Finally, the headache condition was not found to impact the Veteran’s ability to work. In December 2017, the Veteran submitted a November 28, 2017 DBQ conducted by Dr. JBM. Dr. JBM noted diagnoses for migraine and tension headaches which included treatment via prescription medication. The Veteran reported sharp throbbing head pain on both sides of his head. Pain was reported to worsen with physical activity. In addition, the Veteran reported sensitivity to light and sound, and blurry vision during headache episodes. Typical headache pain lasted less than one day in duration. The Veteran’s headache condition was not found manifested by characteristic prostrating or prolonged attacks of migraines. Dr. JBM did note non-migraine variant headaches characteristic of prostrating attacks one to two times per week. The Veteran’s headache condition was not found to impact his ability to work. After a review of the evidence of record, the Board finds that a compensable rating prior to November 28, 2017 is not warranted. Specifically, prior to November 28, 2017, the evidence of record does not show the Veteran’s diagnosed tension headaches manifested by prostrating attacks. Absent competent evidence of headaches productive of prostrating attacks during this period on appeal, a compensable rating pursuant to DC 8100 is not warranted. Conversely, the November 28, 2017 DBQ documents non-migraine variant headaches manifested by prostrating attacks one to two times per week. Accordingly, as of the November 28, 2017 DBQ, the Board finds that a staged 30 percent evaluation is warranted as the evidence of record shows very frequent prostrating attacks. A higher 50 percent evaluation is not warranted as Dr. JBM did not note that the headache attacks were completely prostrating or productive of severe economic inadaptability. In this regard, Dr. DBQ qualified his findings between migraine and non-migraine variants and noted that the Veteran did not have prostrating migraine headaches. Moreover, Dr. DBQ found that the Veteran’s headache condition did not impact his ability to work. The Board also finds it instructive that the Veteran has not reported that his headache condition has resulted in severe economic inadaptability. Instead, the Veteran stated that a 30 percent evaluation would satisfy his appeal. Accordingly, the Board concludes that prior to November 28, 2017, the preponderance of the evidence is against the assignment of an initial compensable rating and that portion of the claim is denied. As of November 28, 2017, a 30 percent evaluation, but no higher, for headaches is warranted and that portion of the claim is granted. Rating Reductions The Veteran seeks restoration of the 30 percent disability rating for his service-connected bilateral foot condition. He contends that the reduction of the evaluation from 30 percent to non-compensable was improper. A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). 1. Due Process The Board notes that there are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). A period of 60-days is allowed for response. Id. The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105(i). Furthermore, the effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, reduction notification procedures were required as the February 2016 rating decision that implemented the rating reduction changed the Veteran’s overall disability rating, which was reduced from 30 percent to non-compensable. The special procedural requirements outlined in 38 C.F.R. § 3.105(e) and (i) were therefore applicable in this case. The record includes an August 2015 rating decision that proposed reducing the rating of the Veteran’s bilateral foot disability from 30 percent disabling to non-compensable. The Veteran was notified of the proposed rating reduction in August 2015. The August 2015 notice enclosed the August 2015 rating decision that set forth all material facts and reasons for the proposed rating reductions. Additionally, the August 2015 notice properly notified the Veteran of the 60-day period to provide evidence, how to obtain a personal hearing in accordance with 38 C.F.R. § 3.105(i), and what evidence he could submit. Thus, the Board finds that VA has satisfied the specific procedural requirements applicable to the Veteran’s rating reduction. Therefore, the remaining question is the propriety of the reduction. 2. Legal Analysis A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999). The criteria governing certain rating reductions for certain service connected disabilities are found under 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. In the present case, the 30 percent evaluation for the service-connected bilateral foot condition had been in effect for less than a year at the time the reduction took place. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, in Brown v. Brown, 5 Vet. App. 413 (1993), the Court stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421, citing 38 C.F.R. § 4.1, 4.2, 4.10, 4.13. The Veteran’s bilateral foot condition is evaluated under 38 C.F.R. § 4.71a, DC 5276. Under DC 5276, a noncompensable rating is warranted for mild flatfoot defined as symptoms relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate flatfoot with symptoms of the weight-bearing line falling over or medial to the great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet, whether presented bilaterally or unilaterally. A 30 percent evaluation is warranted for severe bilateral flatfoot with symptoms of objective evidence of marked deformity (pronation, abduction, etc.), pain accentuated on manipulation and use, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral flatfoot with symptoms of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, which are not improved by orthopedic shoes or appliances. The words “slight,” “moderate,” “and “severe,” as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Although an element of evidence to be considered by the Board, the use of terminology such as “severe” by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes that the August 2015 rating decision noted the following evidence in support of the proposed rating reduction: symptoms relieved by arch supports (renders diagnosis asymptomatic). Additionally, the February 2016 rating decision cited the same evidence listed in the August 2015 rating decision, and the reasoning for the reduction cited in both rating decisions shows that the RO focused on the July 2015 VA examination findings as the basis for the rating reduction. The July 2015 VA examination revealed a diagnosis for pes planus and plantar fasciitis. No other foot disability was found. The diagnosed foot condition was found manifested by pain which the Veteran reported hurt when touched. The Veteran denied any flare-up or functional loss. The examiner noted pain on use and manipulation of the feet. No swelling on use or characteristic calluses were noted. Arch supports were found to have relieved the symptoms bilaterally. No marked deformity, pronation or weight-bearing line falling over or medial to the great toe was found. No inward bowing of the Achilles’ tendon or marked inward displacement and severe spasm of the Achilles’ tendon was found. The severity of the Veteran’s bilateral foot condition was noted as moderate. The Board further notes that an April 2014 VA medical record shows the Veteran reported continued use of shoes with good arch supports and that his symptoms had improved as a result. Accordingly, the July 2015 VA examination findings are supported by contemporary statements attributable to the Veteran. Further, the Veteran did not report that arch supports no longer improved his bilateral foot condition until he submitted his August 2016 VA Form 9 in which he asserted a worsening bilateral foot condition. Therefore, after a review of the evidence of record at the time of the February 2016 rating decision, the Board finds that the preponderance of evidence established improvement in the Veteran’s bilateral foot disability. However, the Board concludes that a reduction in evaluation from 30 percent to 10 percent is more appropriate as the evidence more nearly approximates the criteria for a moderate foot disability. 38 C.F.R. §§ 3.344, 4.71a, DC 5276. REASONS FOR REMAND 1. OSA The Veteran asserts entitlement to service connection for OSA. A review of the claims file shows the Veteran denied any frequent trouble sleeping during his January 2004 enlistment examination. Additionally, in March 2012, the Veteran reported a sleep disorder including loud snoring. In September 2015, the Veteran underwent a split night polysomnogram study. He was diagnosed with severe OSA. The record also includes a February 2016 VA psychiatric examination in which the Veteran’s service-connected PTSD was found manifested by chronic sleep impairment and the Veteran reported waking-up in the middle of the night due to his psychiatric disorder. To date, the Veteran has not been provided with a VA examination to determine the nature and etiology of his diagnosed OSA. VA must provide a medical examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. Accordingly, a remand is necessary to obtain a VA examination. 2. Left Hand Weakness 3. Left Thumb Disability In a February 2015 rating decision, the RO granted service connection for fracture left thumb-resolved/left thumb strain. A non-compensable rating was assigned pursuant to 38 C.F.R. § 4.71a, DC 5228, limitation of motion of the thumb. The non-compensable rating was based on a “diagnosed disability with no compensable symptoms.” The Veteran filed a timely NOD as to the non-compensable rating in September 2015. In July 2016, the Veteran filed a separate service connection claim for left hand weakness which was denied in an October 2016 rating decision. The Veteran has perfected an appeal as to that issue. At a November 2014 VA examination, the Veteran was diagnosed with fractured left thumb resolved and left thumb strain. The Veteran denied any flare-ups. ROM testing revealed no limitation of motion or evidence of painful motion for the thumb or any finger. The examiner further noted the Veteran could oppose his thumb with no gap between the thumb pad and the fingers. Additionally, no gap between any fingertips and the proximal transverse crease of the palm was found nor was any limitation of extension for the index finger or long finger. Imaging studies and muscle strength testing was normal for the left hand. The examiner did note pain to palpation of the left thumb and that the Veteran had some difficulty gripping objects using his left thumb. The Veteran underwent another VA examination in July 2015, during which the Veteran was diagnosed with left thumb strain and resolved past fracture. The Veteran reported symptoms of pain. The Veteran also reported flare-ups resulting in a swollen thumb. The Veteran was found able to move his thumb back and forth. In addition, the examiner found no limitation of motion or evidence of painful motion related to his thumb or any finger. Repetitive-use testing resulted in no further limitation of motion and a gap was not found between the thumb pad and the fingers. Additionally, no gap between any fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips was found. Further, the examiner noted no limitation of extension for the index finger or long finger and no functional loss or functional impairment of any finger or thumb was found. Left hand grip strength was found normal. In August 2016, the Veteran asserted that his left thumb symptoms had worsened. Specifically, the Veteran asserted that it was hard for him to close his hand completely and that he had loss of ROM of his thumb. He additionally asserted that there was a gap between his thumb and his fingers. A September 2016 VA medical record noted limited strength of the Veteran’s left hand. Hand strength was rated a 2 on a scale to 5. Finally, in his September 2017 VA Form 9, Substantive Appeal, related to his service connection claim for left hand weakness, the Veteran asserted that his left thumb was deformed and he could not fully bend it. He further asserted that his left hand was weak. Initially, the Board notes that it is unclear whether the Veteran is asserting a disability claim for his left hand separate and apart from his left thumb. In this regard, the Veteran’s statements appear to relate left hand weakness as a symptom of his service-connected left thumb disability. In order to determine the current nature, severity and etiology of any diagnosed left-hand disability, the Board finds that a VA examination is necessary. First, since his most recent July 2015 VA examination, the Veteran has asserted worsening symptoms related to his left thumb disability including a reduction in ROM. In this regard, the Board notes that the July 2015 VA examiner found normal grip strength with regard to the Veteran’s left hand. However, more recent VA medical records show a substantially reduction in grip strength. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Given the Veteran’s assertion that his left thumb disability had worsened since his last VA examination, and recently added medical records evidencing that his condition had worsened, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.15. Further, as it is unclear whether the Veteran’s complaint of a weakened left hand is separate and distinct from his service-connected left thumb disability, a VA examination is necessary to determine the nature and etiology of any additional left-hand disability that may be present to include any neurological disability. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his diagnosed OSA. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed OSA is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed OSA was caused a service-connected disability, to include PTSD? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed OSA was permanently worsened beyond normal progression (aggravated) by a service-connected disability, to include PTSD? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. After the development in #1 has been completed, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed left-hand disability, to include any neurological disorders. The examiner should determine whether any left-hand disability, to include left hand weakness, is separate and distinct from the service-connected left thumb disability. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left-hand disability is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left-hand disability was caused a service-connected disability, to include left thumb disability? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left-hand disability was permanently worsened beyond normal progression (aggravated) by a service-connected disability, to include left thumb disability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. In connection with step 3 above, the examiner should also determine the current nature and severity of his service-connected left thumb disability, to include whether it is manifested by any neurological symptomatology. The examiner should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies for the left thumb, and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel