Citation Nr: 18152345 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-26 430 DATE: November 21, 2018 ORDER Restoration of a 40 percent rating for peripheral neuropathy of the left lower extremity, from November 1, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. Restoration of a 40 percent rating for peripheral neuropathy of the right lower extremity, from November 1, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The reduction in the disability ratings for peripheral neuropathy of the left and right lower extremities from 40 percent to 10 percent was not based on improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 2. The Veteran has been awarded service connection for the following disabilities: peripheral neuropathy of the left upper extremity, rated 40 percent disabling; peripheral neuropathy of the right upper extremity, rated 30 percent disabling; posttraumatic stress disorder (PTSD), rated 30 percent disabling; type II diabetes mellitus, rated 20 percent disabling; peripheral neuropathy of the left lower extremity, now rated 40 percent disabling; and peripheral neuropathy of the right lower extremity, now rated 40 percent disabling. His combined disability rating is 90 percent. 3. The Veteran’s service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The reduction in the disability rating for peripheral neuropathy of the left lower extremity from 40 percent to 10 percent was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344. 2. The reduction in the disability rating for peripheral neuropathy of the right lower extremity from 40 percent to 10 percent was not proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344. 3. The criteria for a TDIU due to service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to November 1971. His awards include the Combat Infantryman Badge. These matters come before the Board of Veterans’ Appeals (Board) from April 2014 and August 2016 rating decisions. The Veteran testified before the undersigned Veterans Law Judge at an October 2018 hearing. A transcript of the hearing has not yet been associated with the Veteran’s claims file. However, as the Board is granting the benefits sought on appeal in full, the transcript is not necessary at this time. I. Rating Reductions Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, 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 latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). If a timely request for a predetermination hearing is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. Also, if a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105 (i)(1). If a predetermination hearing is conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. The provisions of 38 C.F.R. § 3.344 (a), (b) prescribe additional requirements for rating reductions but only apply to ratings that have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (c). Whether the reduction in the disability ratings for peripheral neuropathy of the left and right lower extremities from 40 percent to 10 percent was proper The Board finds, for the following reasons, that the reduction in the disability ratings for peripheral neuropathy of the left and right lower extremities from 40 percent to 10 percent was not proper and that, therefore, the 40 percent ratings must be restored. Historically, in a February 2013 rating decision, the agency of original jurisdiction (AOJ) granted increased (40 percent) ratings for peripheral neuropathy of the left and right lower extremities based upon the findings made during a February 2013 VA neurological examination. During that examination, the Veteran reported that he experienced numbness and burning in his feet which was treated with medication. There was no lower extremity constant pain or intermittent pain, but there was severe lower extremity paresthesias/dysesthesias bilaterally and moderate lower extremity numbness bilaterally. Examination revealed that sensation at the feet/toes was decreased (e.g. sensation to pinprick was decreased distal to the ankles), but that position sense, vibration sensation, and cold sensation were all normal bilaterally, lower extremity muscle strength was normal (5/5) bilaterally, and deep tendon reflexes were normal (2+) bilaterally. Overall, the examiner indicated that there was moderately severe incomplete paralysis of the sciatic nerves bilaterally. The Veteran was diagnosed as having diabetic sensory peripheral neuropathy. The Veteran subsequently submitted a claim for a TDIU in February 2013 (see a February 2013 “Veteran’s Application for Increased Compensation Based on Unemployability” form (VA Form 21-8940)). A VA neurological examination was conducted in April 2014, during which the Veteran reported that he continued to experience numbness and burning in both feet which was treated with medication. There was no lower extremity constant pain or intermittent pain, but there was lower extremity severe paresthesias/dysesthesias bilaterally and moderate numbness bilaterally. Examination revealed that sensation at the ankles/lower legs and feet/toes was decreased, but that position sense, vibration sensation, and cold sensation were all normal bilaterally, lower extremity muscle strength was normal (5/5) bilaterally, and deep tendon reflexes were normal (2+) bilaterally. Overall, the examiner indicated that there was moderate incomplete paralysis of the sciatic nerves bilaterally. A diagnosis of diabetic peripheral neuropathy was provided. In the April 2014 rating decision, the AOJ, among other things, denied higher ratings for peripheral neuropathy of the left and right lower extremities and a TDIU. The Veteran submitted a timely notice of disagreement with the April 2014 denial of a TDIU in October 2014. In support of his appeal, he submitted an April 2014 “Physician’s Statement for Disabled License Plates or Placards” form completed by a physician. The physician indicated on the form that the Veteran was unable to ambulate or walk 50 feet without stopping to rest due to a severe and disabling arthritic, neurological, orthopedic condition, or other severe and disabling condition. The physician also noted that the Veteran’s disability was permanent. The Veteran was thereafter afforded another VA neurological examination in September 2015, during which he reported that he still experienced constant tingling and burning in the toes which was treated with medication. There was no intermittent pain in the lower extremities, but there was mild constant pain, paresthesias/dysesthesias, and numbness in the lower extremities bilaterally. Examination revealed that sensation was decreased at the feet/toes and that lower extremity vibration sense was decreased bilaterally. Lower extremity muscle strength was normal (5/5) bilaterally, deep tendon reflexes were normal (2+) bilaterally, and position sense and cold sensation were both normal bilaterally. Overall, there was mild incomplete paralysis of the sciatic nerve bilaterally. The Veteran was diagnosed as having bilateral diabetic peripheral neuropathy of the lower extremities. This disability impacted his ability to work in that he was not able to stand or walk for a prolonged period of time. Specifically, he was only able to walk approximately 50 meters and stand for 5 to 10 minutes at a time. In a November 2015 rating decision, the AOJ proposed to reduce the disability ratings for the Veteran’s peripheral neuropathy of the left and right lower extremities from 40 percent to 10 percent. At that time, the AOJ only explained that the report of the September 2015 VA neurological examination indicated mild incomplete paralysis. The Veteran was notified of the November 2015 rating decision by way of a November 2015 letter. This letter notified him that he had a period of 60 days within which to submit additional evidence showing that the reduction should not have been made, that he had a period of 30 days within which to request a predetermination hearing, and that if a request for a predetermination hearing was not received within 30 days or additional evidence was not received within 60 days, the ratings for the service-connected left and right lower extremity peripheral neuropathy would be reduced. In a January 2016 statement (VA Form 21-4138), the Veteran requested a predetermination hearing pursuant to 38 C.F.R. § 3.105 (i). A hearing with the AOJ was conducted in February 2016 and a transcript of that hearing is of record. An October 2015 VA physician emergency department note, a January 2016treatment record from SSM Neurology, and a July 2016 VA primary care treatment note were also associated with the claims file. These treatments records reflect that the Veteran reported that he experienced numbness, tingling, pain, and burning in the legs and feet bilaterally, that there was worsening leg pain, and that his neurological medication dosage had been increased “due to worsening symptoms of his neuropathy.” In addition, the Veteran was afforded another VA neurological examination in April 2016. He reported during the examination that he experienced mild paresthesias/dysesthesias and numbness in the lower extremities bilaterally. Examination revealed that position sense was decreased in the left lower extremity, but that lower extremity muscle strength was normal (5/5) bilaterally, lower extremity reflexes were normal (2+) bilaterally, and lower extremity light touch/monofilament sensation was normal bilaterally. In the August 2016 rating decision, the AOJ reduced the disability ratings for the Veteran’s peripheral neuropathy of the left and right lower extremities from 40 percent to 10 percent, effective November 1, 2016. The AOJ cited the April 2014, September 2015, and April 2016 VA examinations and explained, in pertinent part, that multiple examinations described his condition as mild and that there was no evidence of loss of muscle ot tendon reflex in either lower extremity. Initially, the Board finds that the AOJ complied with the due process requirements of 38 C.F.R. § 3.105 (e) by issuing the November 2015 rating decision and November 2015 letter which proposed the rating reduction for the Veteran’s peripheral neuropathy of the lower extremities. The Veteran was then given the appropriate time within which to provide additional evidence and was afforded his requested predetermination hearing. Thereafter, the AOJ promulgated the August 2016 rating decision, implementing the proposed reduction, effective November 1, 2016. Thus, as the notice and due process requirements of 38 C.F.R. § 3.105 (e) have been met, no further discussion in this regard is necessary. At the time of the August 2016 reduction, the 40 percent ratings for the Veteran’s peripheral neuropathy of the lower extremities had been in effect since July 2012. Thus, as the ratings for peripheral neuropathy of the left and right lower extremities had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344 (a), (b), which provide additional regulatory hurdles to rating reductions, do not apply. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). With respect to ratings that have been in effect for less than 5 years, as in this case, 38 C.F.R. § 3.344 (c) requires improvement before a rating is reduced. Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the rating. In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction is warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. In light of the above evidence, the Board finds that the reduction in the disability ratings for the Veteran’s peripheral neuropathy of the left and right lower extremities was not proper. The August 2016 rating decision which reduced the disability ratings demonstrates that the AOJ appears to have essentially analyzed the issues of reduction of the 40 percent ratings in the same manner as it would analyze an increased rating claim. Specifically, the AOJ did not address whether there was “an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Id. Overall, the evidence does not reflect that there was any improvement in the Veteran’s ability to function under the ordinary conditions of life and work in light of his lower extremity peripheral neuropathy at the time of the August 2016 reduction. Rather, the Veteran consistently reported during the pertinent VA examinations that his lower extremity neurological symptoms remained essentially the same. Also, the October 2015 VA physician emergency department note and July 2016 VA primary care treatment note reflect that the Veteran’s lower extremity neurological symptoms had potentially worsened, notwithstanding any improvement in some objective neurological test results. Notably, the AOJ did not at all acknowledge or discuss this medical evidence of potential worsening. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. The Court has stated that both decisions by the AOJ and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The law is clear that certain procedures must be followed when a disability rating is reduced. The failure to properly apply the provisions of 38 C.F.R. § 3.344 renders the reduction from 40 percent to 10 percent void ab initio. Kitchens, 7 Vet. App. at 320; Dofflemeyer, 2 Vet. App. at 277. Accordingly, under these circumstances, the previously assigned 40 percent ratings for the Veteran’s peripheral neuropathy of the left and right lower extremities must be restored, effective November 1, 2016. II. TDIU Where the schedular rating is less than total, a TDIU may be assigned when it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected condition. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). Entitlement to a TDIU due to service-connected disabilities The Board finds, for the following reasons, that the Veteran’s service-connected disabilities, alone, preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. The Veteran is service-connected for the following disabilities: peripheral neuropathy of the left upper extremity, rated 40 percent disabling; peripheral neuropathy of the right upper extremity, rated 30 percent disabling; PTSD, rated 30 percent disabling; type II diabetes mellitus, rated 20 percent disabling; peripheral neuropathy of the left lower extremity, now rated 40 percent disabling; and peripheral neuropathy of the right lower extremity, now rated 40 percent disabling. His combined disability rating is 90 percent. Hence, he meets the percentage requirements for a TDIU. See Id. The remaining question is whether his service-connected disabilities, alone, preclude gainful employment for which his education and occupational experience would otherwise qualify him. A February 2007 VA psychiatry note, the reports of VA psychiatric examinations dated in May 2007 and April 2010, and the Veteran’s Social Security Administration (SSA) disability records indicate that he received his General Equivalency Diploma (GED) and completed 4 years of vocational training in electrical technology. He worked for a produce provider prior to service, was employed as an automobile assembler on an assembly line at an automobile manufacturer after service for over 30 years, and retired in September 2008. He generally did not experience any work-related problems and had never been terminated or disciplined, but he was occasionally tearful and “jumpy” at work. Some of his supervisors were aware of his condition and they supported his decision to go “lie down” at the medical center. The February 2013 VA neurological examination report indicates that the Veteran reported that he experienced numbness and burning in his feet, severe lower extremity paresthesias/dysesthesias bilaterally, and moderate lower extremity numbness bilaterally. Examination revealed that sensation at the feet/toes was decreased (e.g. sensation to pinprick was decreased distal to the ankles). The Veteran reported on the February 2013 VA Form 21-8940 that he completed 2 years of college, worked as an automobile assembler from April 1979 to September 2008, and was unable to secure or follow any substantially gainful occupation due to peripheral neuropathy. Specifically, he experienced numbness and tingling in his fingers and legs, coldness in his feet, and cramping. As a result, he was unable to stand or walk for any period of time without discomfort. Also, he had to eat 4 meals per day to prevent hypoglycemia. The reports of the April 2014 and September 2015 VA neurological examinations reflect that the Veteran experienced numbness, tingling, and burning in both hands and feet, mild constant pain in the upper and lower extremities bilaterally, mild to severe paresthesias/dysesthesias in the upper and lower extremities bilaterally, and mild to moderate numbness in the lower extremities bilaterally. Examinations revealed that sensation at the ankles/lower legs and feet/toes was decreased and that vibration sensation was decreased in the lower extremities bilaterally. The Veteran’s neurological disability impacted his ability to work in that he was not able to stand or walk for prolonged periods of time (i.e., he was only able to walk approximately 50 meters and stand for 5 to 10 minutes at a time). The nurse practitioner who conducted the April 2014 examination opined that the Veteran’s diabetic peripheral neuropathy did not likely (“less likely as not”) prevent him from engaging in employment. He reasoned that the Veteran’s symptoms would limit his ability to engage in heavy physical work, but that they were not severe enough to limit him from performing light physical or non-physical employment. His proprioception was intact in the hands and feet, muscle strength testing was normal in the upper and lower extremities, reflexes were normal, and he had good manual dexterity in his hands (as observed when he tied his shoes, undressed, and dressed). He performed gardening in the spring and summer and mowed his grass with a riding mower, was fully alert and oriented, and did not appear to have any cognitive limitations. A March 2016 “Request for Employment Information in Connection with Claim for Disability Benefits” form (VA Form 21-4192) completed by the Veteran’s former employer confirms that he was employed on a full-time basis as an assembler at an automobile company from April 1979 to September 2008, at which time he retired. The April 2016 VA neurological examination report and the reports of an April 2016 VA psychiatric examination and VA neurological examinations dated in August 2017 and March 2018 indicate that the Veteran worked for 12 years as an inventory purchasing clerk at a federal savings and loan and for 30 years at a car manufacturer. He retired in 2008. He experienced bilateral upper and lower extremity numbness, intermittent pain, and paresthesias/dysesthesias, and decreased hand grip bilaterally. He also experienced depression, suspiciousness, panic attacks more than once a week, impaired sleep, night sweats and nightmares, anxiety, irritable behavior and angry outbursts, hypervigilance, a hyperstartle response, crying spells, impaired concentration, and mild memory loss. The neurological examinations revealed that finger pinch was occasionally somewhat impaired (4/5) bilaterally, upper and lower extremity deep tendon reflexes were occasionally somewhat impaired (1+) bilaterally, upper and lower extremity sensation was occasionally decreased bilaterally, position sense was decreased in the left lower extremity, and vibration sense was decreased in the lower extremities bilaterally. The psychologist who conducted the April 2016 psychiatric examination explained that as a result of the Veteran’s PTSD, he would not be able to function in any occupational environment due to his psychiatric symptoms. Specifically, he experienced crying spells, jumped easily when he heard noises (e.g., he would jump to the ground thinking that something would come flying through the window), and was easily startled. Also, he did not sleep well at night and this compromised his ability to function in an occupational setting during the day. He experienced difficulty with concentration and was unable to sustain concentration in an occupational setting. Moreover, the physician who conducted the March 2018 VA neurological examination reported that the Veteran’s neurological disability impacted his ability to work in that he would experience more difficulty with firm repetitive grasping and handling, fine fingering, and prolonged standing and walking. In sum, the Board finds that the Veteran obtained his GED, received technical training in electrical technology, and spent the majority of his career working in physical employment on an assembly line as an automobile assembler. He retired in 2008 and has not been gainfully employed since that time. Although he has not reported that he experienced any significant occupational impairment from his disabilities while he was employed, his medical records reflect that in the years since his retirement, his service-connected disabilities have manifested to such an extent that they would preclude him from holding any gainful employment consistent with his education and occupational experience. Specifically, he primarily performed physical labor during his career, but the pain, numbness, and weakness associated with his service-connected neurological disabilities of the upper and lower extremities would significantly interfere with his ability to perform physical tasks. Moreover, the symptoms associated with his service-connected psychiatric disability (including depression, anxiety, impaired memory and concentration, irritability, sleep impairment, and frequent panic attacks) would significantly impair his ability to work in any occupational environment (physical or non-physical). The psychologist who conducted the April 2016 VA psychiatric examination confirmed that the Veteran would not be able to function in any occupational environment due to his PTSD. While there are some medical opinions that the Veteran’s service-connected neurological disability does not preclude all substantially gainful employment, medical examiners are only responsible for providing a full description of the effects of disability upon a veteran’s ordinary activity. See 38 C.F.R. 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). (Continued on the next page)   The above discussion of the severity of the symptoms of the Veteran’s service-connected disabilities and his educational and occupational experience, to include the medical opinions, reflects that the preponderance of the evidence is in favor of a conclusion that the Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. Hence, entitlement to a TDIU is warranted. 38 U.S.C. 5107 (b); 38 C.F.R. 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel