Citation Nr: 18150800 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 17-66 194 DATE: November 15, 2018 ORDER Restoration of a 20 percent rating, effective December 22, 2016, for sciatic nerve radiculopathy of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT The evidence of record at the time of the reduction failed to demonstrate a sustained improvement in the Veteran’s service-connected sciatic nerve radiculopathy of the right lower extremity under ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the rating for sciatic nerve radiculopathy of the right lower extremity from 20 percent to 10 percent was improper, and restoration of the 20 percent rating, effective December 22, 2016, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.45, 4.59, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1995 to July 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2017 by a Department of Veterans Affairs (VA) Regional Office. In November 2016, the Veteran filed a service connection claim for radiculopathy of the left lower extremity. In the February 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted said claim but reduced the rating assigned to the Veteran’s service-connected sciatic nerve radiculopathy of the right lower extremity (right lower extremity) from 20 percent to 10 percent, effective December 22, 2016. The Veteran’s current appeal stems from that reduction. As the Veteran’s notice of disagreement focuses solely on the reduction, with the specific request for restoration of only the 20 percent, the Board has characterized and addressed the issue herein accordingly. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Propriety of the rating reduction from 20 percent to 10 percent, effective December 22, 2016, for service-connected right lower extremity Initially, the Board notes that as the reduction on appeal did not result in a reduction or discontinuance of compensation payments currently being made, the notice requirements of 38 C.F.R. § 3.105(e) are not applicable in this case. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 20 percent rating for the Veteran’s right lower extremity was in effect from July 30, 2012, to December 22, 2016, i.e., less than 5 years. Thus, the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, the Court noted in Brown that there are several 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. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Id. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, supra, at 277. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation 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. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis and a 20 percent disability rating for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is provided for severe incomplete paralysis, with marked muscular atrophy. An 80 percent disability rating is provided for complete paralysis of the sciatic nerve, when the foot dangles and drops, no active movement is possible of the muscles below the knee, and flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a defines the term “incomplete paralysis” as indicating a degree of lost or impaired function substantially less than the type pictured 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. Upon review, the Board finds improper the reduction in the rating for the Veteran’s right lower extremity from 20 percent to 10 percent, effective December 22, 2016. In this regard, the Board observes that such reduction was based upon a December 2016 VA back examination report that reflects only mild paresthesias and/or dysesthesias in the right lower extremity. Here, however, the Board finds pertinent the Veteran’s consistent, competent reports of numbness, tingling, and pain of the right lower extremity, which are dated throughout the pendency of the appeal. In fact, despite the medical findings, the December 2016 VA examination report reflects such complaints, to include statements indicating the Veteran’s right-sided pain was greater than her left-sided pain. Moreover, the report shows the Veteran continued to treat her symptoms with medication. Upon review, the Board finds this evidence does not reflect material improvement of the Veteran’s right lower extremity. In addition, the Board finds the evidence does not show actual improvement in the impact of the Veteran’s disability under ordinary conditions of life and work. The December 2016 VA examination report is consistent with the medical evidence of record and lay statements that indicate the Veteran’s right lower extremity continually was aggravated with prolonged standing, walking, and sitting throughout the pendency of the appeal. Therefore, the Board finds that, based on the evidence at the time of the reduction, the preponderance of the evidence did not establish that the Veteran’s service-connected right lower extremity demonstrated improvement under ordinary conditions of life and work. Accordingly, based on the analysis above, the reduction in the rating assigned for the Veteran’s right lower extremity was improper and restoration of the 20 percent rating is warranted effective December 22, 2016. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones, Associate Counsel