Citation Nr: 18151187 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-53 246 DATE: November 16, 2018 ORDER Restoration of a 30 percent evaluation for a left tarsal condition with arthritis of the subtalar and talonavicular joints of the left ankle is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. In a September 2015 rating decision, the Regional Office (RO) reduced the evaluation for the Veteran’s service-connected left ankle disability from 30 percent to 20 percent, effective from September 28, 2015. 2. At the time of the September 2015 rating decision, the 30 percent disability evaluation for the Veteran’s service-connected left ankle disability had been in effect since October 24, 2012. 3. At the time of the September 2015 rating decision, the evidence did not establish an improvement in the Veteran’s service-connected left ankle disability which resulted in an improvement in her ability to function under the ordinary conditions of life. CONCLUSION OF LAW Restoration of a 30 percent evaluation for a left tarsal condition with arthritis of the subtalar and talonavicular joints of the left ankle is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes 5003-5270 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1988 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision. The Board notes that the current appeal stems from the reduction in the rating for the Veteran’s service-connected left ankle disability from 30 percent to 20 percent. In July 2018, the Veteran’s representative asserted that she is entitled to an increased evaluation for her service-connected left ankle disability. However, the Board does not have jurisdiction over the matter. In this decision, the Board addresses only the issue of whether the reduction was proper. Peyton v. Derwinski, 1 Vet. App. 282 (1991) (holding that an appeal of a rating reduction is not an increased rating claim and cannot be adjudicated on that basis); see also Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992) (holding that where a Veteran’s disability rating is reduced, the Board must determine whether the reduction of that rating was proper and may not phrase the issue in terms of entitlement to an increased rating). The Board notes that additional VA medical records have been associated with the claims file since the September 2016 statement of the case. However, in light of the favorable determination below, the Board finds that there is no prejudice in proceeding with adjudication of the claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). In the rating schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations 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. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a veteran’s disability claim may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. Where a reduction in evaluation of a service-connected disability or employability status is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor, and be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective 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). Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. Prior to reducing a veteran’s disability rating, however, VA must comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. These provisions require that VA rating reductions, as with all VA rating decisions, be based on review of the entire history of the disability. Faust v. West, 13 Vet. App. 342, 349 (2000) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, Brown, 5 Vet. App. at 420, and Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)). In any rating reduction case, VA must ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement in a disability actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421; see also Schafrath, 1 Vet. App. at 594 (“[T]hese requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete [,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition.”) and 38 C.F.R. § 3.344(c). 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. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Historically, in a June 2012 rating decision, the RO granted service connection for left ankle degenerative joint disease with calcaneal navicular (cal-nav) fibrous coalition and assigned a 10 percent evaluation effective from June 8, 2011, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. During a March 2013 VA examination, the Veteran reported having sharp pain in her left ankle that waxed and waned. She rated her pain as a 5 on a scale from 1 to 10. She indicated that her pain was slightly relieved by elevation, rest, and over-the-counter pain medication. The Veteran also reported having mild swelling, weakness, and fatigue. She did not report having flare-ups that impacted the function of her ankle. Range of motion testing revealed plantar flexion to 40 degrees and plantar dorsiflexion to 5 degrees with pain at the same level. There was no additional limitation of motion on repetitive range of motion testing. The examiner noted that the Veteran had less movement than normal, weakened movement, pain on movement, swelling, and interference with sitting, standing, and weight-bearing. A physical examination revealed pain on palpation of the joints or soft tissue of the left ankle. Muscle strength testing revealed active movement against some resistance for left ankle plantar flexion and dorsiflexion. There was loss of muscle mass in the Veteran’s left calf muscle, which measured 30 centimeters on the left compared to 35 centimeters on the right side. It was also noted that there was ankylosis of the left ankle in dorsiflexion between 0 degrees and 10 degrees. The examiner was unable to perform joint stability testing. The examiner noted that the Veteran used assistive devices as a normal mode of locomotion, including regular use of a wheelchair and occasional use of crutches and a walker. The examiner indicated that the Veteran did not have functional impairment of the left ankle such that no effective function remained other than that which would be equally well served by amputation with prosthesis. He noted that x-ray findings of the left ankle revealed degenerative or traumatic arthritis. The examiner opined that the Veteran’s left ankle disability had a moderate impact on her ability to work. He also noted that the Veteran was concerned about whether she would be able to return to work as a substitute teacher due to the amount of standing required. In June 2013, the Veteran reported that she was unable to work because she did not have a sedentary job and could not walk without crutches. In an August 2013 rating decision, the RO assigned a 30 percent evaluation effective October 24, 2012, for a left tarsal condition with arthritis of subtalar and talonavicular joints of the left ankle (previously rated as left ankle degenerative joint disease with cal-nav fibrous coalition). In so doing, the RO changed the Diagnostic Code to 5003-5270. In an April 2014 VA medical record, a podiatrist stated that the Veteran could not perform work activities due to pain and ambulatory restrictions. During a July 2014 VA examination, the Veteran reported having an aching pain in her left ankle and swelling that generally had its onset in the middle of the day and increased until night time. She reported taking prescription and over-the-counter pain medication to treat her disorder. She denied having any symptoms of clicking or popping sensations and did not report having any flare-ups. The Veteran stated that she was able to walk around rooms in her home and take care of activities of daily living, but she received help from her sister for activities such as cleaning. She stated that she had not driven in years, in part, due to her ankle stiffening when sitting in a car for long periods. The Veteran reported that she was a former substitute teacher, but lost her job because she was unable to return to full activity at work. She also reported that she was unable to find work since that time. Range of motion testing revealed plantar flexion to 35 degrees and plantar dorsiflexion to 5 degrees with pain on motion. There was no additional limitation in range of motion following repetitive use testing. With respect to functional loss, the examiner only identified impairment in the right ankle. The examiner also stated that there was insufficient objective data to predict without resorting to speculation whether there would be any additional decreased function, range of motion loss secondary to pain, weakness, fatigue, incoordination with flares or repeated activity. On physical examination, the examiner stated that there was tenderness or pain on palpation of the joints or soft tissue of the right ankle. Muscle strength testing revealed normal strength for left ankle plantar flexion and dorsiflexion. Joint stability testing did not reveal laxity when compared to the opposite side. There was no ankylosis of the ankle, subtalar, and/or tarsal joint. The examiner noted that the Veteran used assistive devices as a normal mode of locomotion, including occasional use of crutches and regular use of a cane. The Veteran also reported that she was only able to walk with the assistance of a cane and that she remained on crutches until approximately two days prior to the examination. The examiner indicated that the Veteran did not have functional impairment of the left ankle such that no effective function remained other than that which would be equally well served by amputation with prosthesis. He opined that the Veteran’s ankle condition would impact her ability to work. In a July 2014 rating decision, the RO proposed to reduce the evaluation assigned for the Veteran’s left ankle disability to 20 percent. In so doing, the RO stated that the Veteran’s evaluation was not based on an evaluation in the rating schedule. The RO explained that the evaluation would be adjusted and rated under different rating criteria for limitation of motion rather than the current ankylosis criteria. In an April 2015 VA podiatry record, the Veteran reported having ongoing pain in her left ankle, particularly with standing and walking. It was noted that a physical examination of the Veteran revealed minimal range of motion secondary to a fusion. During a September 2015 VA examination, the Veteran reported having flare-ups of pain several times per day. She rated her pain with weight bearing as a 7 on a scale from 1 to 10. She stated that her pain was alleviated with rest and prescription pain medication, but was aggravated by further weight bearing. The Veteran also reported that her flare-ups were accompanied by weakness, fatigue, and lack of endurance. Range of motion testing revealed left ankle plantar flexion to 20 degrees and dorsiflexion to 0 degrees. The examiner indicated that range of motion contributed to functional loss. There was evidence of pain on examination that caused functional loss, but no evidence of pain with weight-bearing. The examiner indicated that there was additional loss of function with range of motion after three repetitions that was caused by pain, fatigue, weakness, lack of endurance and incoordination. He further stated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time and during flare-ups. A physical examination of the Veteran revealed objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the bilateral malleolar, anterior talofibular joint that was related to residual degenerative joint disease from fusions. There was no objective evidence of crepitus. It was also noted that ankle instability and dislocation were not suspected. Muscle strength testing revealed active movement against some resistance for left ankle plantar flexion and dorsiflexion, but there was no evidence of muscle atrophy. The examiner stated that the Veteran did not have ankylosis. In so finding, he stated that the Veteran “can plantar flex 20 degrees, unable to dorsiflexion, not completely.” The examiner noted that the Veteran used assistive devices as a normal mode of locomotion, including regular use of a cane. He stated that the Veteran used a cane for pain with weight-bearing due to her service-connected left ankle and left foot disabilities. The examiner indicated that the Veteran did not have functional impairment of the left ankle such that no effective function remained other than that which would be equally well served by amputation with prosthesis. He noted that x-ray findings revealed degenerative or traumatic arthritis of the left ankle. The examiner opined that the Veteran’s left ankle disability caused moderately severe functional impairment. He stated that the Veteran would have difficulty performing any job that required weight-bearing on her left lower extremity, but she remained independent in activities of daily living. In a September 2015 rating decision, the RO reduced the evaluation assigned for a left tarsal condition with arthritis of the subtalar and talonavicular joints of the left ankle (previously rated as degenerative joint disease with cal-nav fibrous coalition left ankle) from 30 percent to 20 percent effective from September 28, 2015. In so doing, the RO stated that a 20 percent evaluation was the highest schedular evaluation permitted under the law for limitation of motion of the ankle. The RO also stated that the effective date assigned was based on the date of a September 28, 2015, VA examination that showed a material improvement that only supported a 20 percent evaluation. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that restoration of a 30 percent evaluation for the Veteran’s service-connected left ankle disability is warranted. Initially, the Board notes that the rating reduction did not result in a reduction of the Veteran’s overall level of compensation. Under these circumstances, compliance with the procedural safeguards under 38 C.F.R. § 3.105(e) was not required. See Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010) (explaining that the plain meaning of 38 C.F.R. § 3.105(e) is that notice is warranted only where there is a reduction in compensation payments currently being made); VAOPGCPREC 71-91 (Nov. 7, 1991) (holding that that 38 C.F.R. § 3.105(e) does not apply where evaluation of a specific disability is reduced but there is no reduction in the amount of compensation payable). At the time of the September 2015 rating decision at issue in this case, an evaluation of 30 percent under Diagnostic Codes 5003-5270 had been in effect since October 24, 2012, which was a period of less than five years. Thus, the provisions of 38 C.F.R. § 3.344(c), which apply to evaluations in effect for less than five years, are for application in this case. As discussed above, the Veteran’s left ankle disability was assigned a 30 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5270. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5270, a 20 percent evaluation is warranted for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent evaluation is warranted for ankylosis in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent evaluation is warranted for ankylosis in plantar flexion at more than 40 percent or in dorsiflexion at more than 10 percent or with abduction, adduction, inversion or eversion deformity. Under Diagnostic Code 5271, a maximum 20 percent rating is assigned for marked limitation of motion. Normal range of ankle motion is defined as dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees. 38 C.F.R. 4.71, Plate II. VA may not reduce a rating simply on the basis that the Veteran does not actually meet certain schedular criteria, unless the underlying disorder has shown improvement or clear and unmistakable error (CUE) is shown in the determination to assign the disability rating (which the RO did not find here). Here, in the July 2014 rating decision that proposed the reduction, the RO stated that there was an “improvement” in the Veteran’s disability because a July 2014 VA examination did not demonstrate that she had ankylosis. In the September 2015 rating decision at issue, the RO determined that a reduction was warranted based on the findings of a September 2015 VA examination. In a September 2016 statement of the case (SOC), the RO compared the manifestations of the Veteran’s disability during July 2014 and September 2015 examinations, but there was no attempt to compare the manifestations of the Veteran’s disability during the March 2013 VA examination that served as the basis for the assignment of a 30 percent evaluation. Notably, the RO did not address whether any improvement in the Veteran’s left ankle disability reflected an improvement in her ability to function under the ordinary conditions of life and work in any of these decisions. The Board finds that the record is not sufficient to support a finding that there was an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. In this regard, the July 2014 and September 2015 VA examinations noted that there was no ankylosis. However, the March 2013, July 2014, and September 2015 VA examiners all opined that the Veteran’s disability interfered with her ability to work. Indeed, the September 2015 VA examiner indicated that the Veteran’s left ankle disability caused moderately severe functional impairment, which suggests a possible increase in functional impairment. With regard to the Veteran’s range of motion, the March 2013 VA examination revealed plantar flexion to 40 degrees and dorsiflexion to 5 degrees. The July 2014 VA examination showed plantar flexion to 35 degrees and dorsiflexion to 5 degrees. The September 2015 VA examination showed plantar flexion to 20 degrees and dorsiflexion to 0 degrees. Notably, these range of motion findings indicate that the Veteran’s plantar flexion and dorsiflexion decreased between the March 2013 and September 2015 VA examinations. With regard to functional loss, the March 2013 examiner noted that the Veteran had less movement than normal, weakened movement, pain on movement, swelling, and interference with sitting, standing, and weight-bearing. The September 2015 VA examiner stated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time and during flare-ups. The Board acknowledges that the July 2014 VA examiner only identified impairment in the Veteran’s right ankle when addressing functional loss. However, the July 2014 VA examination report is unclear and internally inconsistent. For example, the examiner stated that there was no functional loss for the Veteran’s right lower extremity and did not identify any impairment for the left ankle. However, he indicated that the Veteran’s right ankle exhibited less movement than normal, pain on movement, and disturbance of locomotion. Therefore, the Board finds that the examination is inadequate. Although the RO stated that the Veteran’s symptoms no longer satisfied the medical criteria for a 30 percent evaluation based upon findings from the July 2014 and September 2015 VA examinations, the RO failed to discuss whether the evidence of record reflected an overall improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The Board also observes that additional evidence received after the reduction, including the Veteran’s lay statements and VA medical records, continue to note that the Veteran’s left ankle impacts her ability to function under the ordinary conditions of life and work. Based on the foregoing, the Board finds that the evidence of record at the time of the September 2015 rating decision did not show actual improvement in the Veteran’s service-connected left ankle disability. Under these circumstances, the Board finds that the RO did not observe the applicable law and regulations in reducing the disability rating assigned for the Veteran’s service-connected left ankle disability to a 20 percent evaluation effective from September 28, 2015, and restoration is warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel