Citation Nr: 18147066 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-28 628 DATE: November 2, 2018 ORDER The reduction of the 10 percent disability rating to 0 percent for peripheral neuropathy of the left leg effective December 20, 2012 was proper; restoration of the 10 percent rating for peripheral neuropathy of the left leg is denied. The reduction of the 10 percent disability rating to 0 percent for peripheral neuropathy of the right leg effective December 20, 2012 was proper; restoration of the 10 percent rating for peripheral neuropathy of the right leg is denied. FINDINGS OF FACT 1. A December 2013 rating decision reduced the ratings for service-connected peripheral neuropathy of the left leg and peripheral neuropathy of the right leg from 10 percent to 0 percent, effective December 20, 2012; the overall disability rating of 70 percent was unchanged. 2. As of December 20, 2012, the separate 10 percent disability ratings for peripheral neuropathy of the left and right legs had been in effect for less than five years. 3. At the time of the rating reductions, the peripheral neuropathies of the left and right legs were each manifested by subjective complaints of severe, intermittent pain and mild numbness of the lower extremities with normal muscle strength, normal reflexes, and normal sensory testing. CONCLUSIONS OF LAW 1. The rating reduction for peripheral neuropathy of the left leg was proper, and restoration of a 10 percent disability rating, effective from December 20, 2012, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code (DC) 8522. 2. The rating reduction for peripheral neuropathy of the right leg was proper, and restoration of a 10 percent disability rating, effective from December 20, 2012, is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code (DC) 8522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 1973 to June 1977, November 1990 to August 1991, and from May 2005 to November 2005. This matter is on appeal from a December 2013 rating decision. Rating Reduction Criteria and Restoration Analysis In December 2013, the RO reduced the 10 percent rating for the service-connected peripheral neuropathy of the left leg and the 10 percent rating for the service-connected peripheral neuropathy of the right leg to 0 percent, effective from December 20, 2012. Because this rating decision did not affect the overall disability rating, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91; Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). The Board will now consider the propriety of the rating reduction. At the time the reduction became effective, December 20, 2012, the 10 percent ratings for the peripheral neuropathy of the left leg and peripheral neuropathy of the right leg had been continuously in effect for less than five years. A rating reduction is not proper unless a veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). 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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, peripheral neuropathies of the left and right legs were each rated under the criteria found at 38 C.F.R § 4.124a, DC 8522 for paralysis of the musculocutaneous nerve (superficial peroneal). DCs 8522, 8622, and 8722 provide ratings for paralysis, neuritis, and neuralgia of the musculocutaneous nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 0, 10, and 20 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the musculocutaneous nerve. A disability rating of 30 percent is warranted for complete paralysis of the musculocutaneous nerve. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such use is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In this case, the Board finds that the evidence showed material improvement of the peripheral neuropathy of the right and left legs, and that the improvement would be maintained under the ordinary conditions of life and work; therefore, the rating reduction was proper, and the criteria for restoration of a 10 percent ratings for peripheral neuropathy of the left and right legs, effective December 20, 2012, have not been met. Historically, in the June 2011 rating decision, the RO granted service connection for peripheral neuropathies of the left and right legs, with each lower extremity assigned a 10 percent rating under DC 8522 effective from September 17, 2010. The RO granted a 10 percent rating based on the April 2011 VA examination findings showing subjective complaints of weakness in the legs and pain traveling from the back to the legs, as well as diminished ankle jerk (i.e., 1+) bilaterally and some sensory deficit of the bilateral lateral feet on objective testing, so that a 10 percent schedular rating under DC 8522 for moderate incomplete paralysis of the musculocutaneous nerve was warranted. At the time of the rating reduction decision, the evidence showed that the criteria for a noncompensable rating under DC 8522 were met. At the November 2013 VA examination, the peripheral neuropathies of the left and right legs were manifested by subjective complaints of severe, intermittent pain and mild numbness of the lower extremities with normal muscle strength, normal reflexes, and normal sensory testing. See also January 2013 private orthopedics and sports medicine note (noting the subjective report of intense pain in the left thigh radiating to the left calf and numbness in the entire left lower extremity with no motor, sensory, or muscle deficit objectively demonstrated). The November 2013 VA examiner described the severity of the radiculopathies as “mild.” Because the peripheral neuropathy symptoms were wholly sensory in nature, occurred only intermittently, and the radiculopathies were characterized as mild by the November 2013 VA examiner, the AOJ reduced the 10 percent ratings for left and right leg peripheral neuropathies to 0 percent schedular disability ratings under DC 8522, which is consistent with mild incomplete paralysis of the musculocutaneous nerve. When compared to the evidence of record when the 10 percent ratings for peripheral neuropathy of the left and right legs were awarded, the evidence at the time of the rating reduction reflected an overall improved peripheral neuropathy of the lower extremities as manifested by improved reflexes (i.e., improved from diminished ankle jerk bilaterally to normal ankle jerk bilaterally), and improved sensation (i.e., improved from sensory deficit of the bilateral feet demonstrated on sensory testing to a normal sensory examination of the bilateral lower extremities) in the bilateral lower extremities. Because this evidence shows that symptoms of the peripheral neuropathies of the lower extremities had improved so that motor and sensory deficits were no longer objectively demonstrated in the lower extremities at the time of the rating reduction decision, and the criteria for a 0 percent rating under DC 8522 were then met, such evidence necessarily reflects an increased neurological function involving the lower extremities under the ordinary conditions of life and work. Moreover, although not relied upon to justify the rating reduction, there is post-reduction evidence consistent with finding that a material improvement of the peripheral neuropathies of the left and right legs was demonstrated, including under the ordinary conditions of life and work. Like the November 2013 VA examination report, the November 2015 VA examination report shows that right and left leg peripheral neuropathies were manifested by normal muscle strength testing, normal reflexes in the lower extremities, and normal sensation on testing bilaterally. The November 2015 VA examiner even added that there was no radicular pain or any signs or symptoms of radiculopathy then demonstrated; therefore, the post-reduction evidence provides further support for finding that there had been material improvement of the peripheral neuropathies of the legs under the ordinary conditions of life and work at the time of the rating reduction. Based on the evidence above, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s service-connected peripheral neuropathies of the left and right legs underwent material improvement, including under the ordinary conditions of life and work; therefore, at the time of the December 2013 rating decision, the reduction, effective December 20, 2012, was warranted. See generally 38 C.F.R. § 3.344. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson, Counsel