Citation Nr: 18154879 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-41 146A DATE: November 30, 2018 ORDER The reduction of the disability rating for peripheral neuropathy of the left upper extremity from 20 percent to noncompensable, effective August 1, 2014, was not proper; restoration of a 20 percent rating, effective August 1, 2014, is granted. The reduction of the disability rating for peripheral neuropathy of the right upper extremity from 30 percent to noncompensable, effective August 1, 2014, was not proper; restoration of a 30 percent rating, effective August 1, 2014, is granted. The reduction of the disability rating for peripheral neuropathy of the left lower extremity from 20 percent to noncompensable, effective August 1, 2014, was not proper; restoration of a 20 percent rating, effective August 1, 2014, is granted. The reduction of the disability rating for peripheral neuropathy of the right lower extremity from 20 percent to noncompensable, effective August 1, 2014, was not proper; restoration of a 20 percent rating, effective August 1, 2014, is granted. FINDINGS OF FACT 1. A May 2014 rating decision reduced the evaluations for the Veteran’s service-connected peripheral neuropathy from 30 percent to noncompensable for the upper right extremity, and from 20 percent to noncompensable for the left upper extremity and each lower extremity, effective August 1, 2014, after meeting all due process requirements in executing such reduction. 2. The November 2011 rating decision granting service connection for peripheral neuropathy separately rated for each limb, was not clearly and unmistakably erroneous. 3. The Veteran’s service-connected peripheral neuropathy did not show actual improvement under the normal circumstances of life and work. CONCLUSIONS OF LAW 1. The reduction in the rating for the Veteran’s left upper extremity peripheral neuropathy from 30 percent to noncompensable was improper, and the 30 percent rating is restored effective August 1, 2014. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.124a, Diagnostic Code (DC) 8699-8614. 2. The reduction in the rating for the Veteran’s right upper extremity peripheral neuropathy from 20 percent to noncompensable was improper, and the 20 percent rating is restored effective August 1, 2014. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.124a, DC 8699-8614. 3. The reduction in the rating for the Veteran’s left lower extremity peripheral neuropathy from 20 percent to noncompensable was improper, and the 20 percent rating is restored effective August 1, 2014. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.124a, DC 8699-8620. 4. The reduction in the rating for the Veteran’s right lower extremity peripheral neuropathy from 20 percent to noncompensable was improper, and the 20 percent rating is restored effective August 1, 2014. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.124a, DC 8699-8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1967 to March 1970. In March 2014, the Veteran presented sworn testimony before a decision review officer (DRO) at the local RO. A transcript of that proceeding is of record. Reductions In a May 2014 rating decision, the RO reduced the Veteran’s rating for peripheral neuropathy of each extremity to noncompensable. The Veteran contends that the reduction was not proper, and that his ratings should be restored. The Board notes that it appears the RO reduced the peripheral neuropathy ratings to noncompensable in lieu of a severance, because the reason for the reduction was an error in granting service connection, however due to the potential for secondary aggravation of his peripheral neuropathy by the Veteran’s service-connected diabetes, the conditions were not severed. Severances are governed by 38 C.F.R. § 3.105(d), and require that the initial decision to grant service connection was clearly and unmistakably erroneous. See 38 C.F.R. § 3.105(d). The RO’s April 2013 notice to the Veteran of the proposed reduction referenced an “improvement” of his neuropathy conditions as the reasoning for the proposed reduction, however the proposed rating decision that accompanied the notice did accurately describe the RO’s facts and reasons for the reduction to be an error in granting service connection. In his substantive appeal, the Veteran contended that he was not properly notified of the reasoning for his rating reduction, specifically that VA had failed to notify him of what improvements had been found in his condition. Both the Statement of the Case (SOC) and the Supplemental Statement of the Case (SSOC) explain that the Veteran’s condition had not improved, but rather that an error was made in assigning service-connection with a compensable rating, due to the fact that the Veteran’s peripheral neuropathy pre-dated his diabetes and there was no evidence showing that service-connected diabetes aggravated his peripheral neuropathy. See 38 C.F.R. § 3.105(a). The propriety of the May 2014 rating decision requires consideration of two separate standards, the standard relating to clear and unmistakable error (CUE) and the standard governing reduction of benefits. That is, the May 2014 rating decision was based on a determination that CUE existed in the November 2011 rating decision. If CUE was not present in the November 2011 rating decision, then there must have been an improvement and stabilization of disability for the reduction. See 38 C.F.R. § 3.344. As explained below, the Board finds that CUE is not present in the November 2011 rating decision. In November 2011, the RO awarded a 30 percent rating for peripheral neuropathy of his right upper extremity, and separate 20 percent ratings for peripheral neuropathy of each of his other extremities, based on an August 2011 examination and opinion wherein the examiner indicated that at the time of the Veteran’s peripheral neuropathy diagnosis, he also had uncontrolled blood glucose levels, supporting a finding that diabetes was a cause of the neuropathy. In May 2014, the RO found that service connection had been granted in error in the November 2011 decision assigning ratings for peripheral neuropathy because of subsequent VA examinations that stated that the Veteran’s peripheral neuropathy predated his development of diabetes, and his diabetes did not cause or aggravate his peripheral neuropathy. By operation of law, a previous rating decision by the RO is binding and will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. §§ 3.10(a), 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. at 313 (en banc). Judicial precedent has consistently stressed the rigorous nature of the concept of CUE. “Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts.” Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). On review, the correct facts, as they were known, were before the claims adjudicator in November 2011, when the rating decision was rendered that granted service connection for peripheral neuropathy of the Veteran’s four extremities secondary to diabetes. Lay statements of record from the Veteran indicated that he had symptoms of peripheral neuropathy such as burning and numbness in his extremities for forty years, predating his diabetes. In granting service connection, however, the RO relied on the opinion from an August 2011 VA examination in which the examiner noted that the Veteran’s peripheral neuropathy was diagnosed in 2006, and lab work suggested that he had uncontrolled glucose dating back to 2006, which predates his official diabetes diagnosis, and strongly supported diabetes as a cause of the neuropathy. Considering the evidence referenced above, the correct facts as they were known at the time were before the decision maker, and it is not undebatable that an error was made in finding that the Veteran’s peripheral neuropathy was caused or aggravated by his diabetes. That is, the clinical evidence before the RO in November 2011 could be interpreted by a factfinder as an informed opinion that it was at least as likely as not that there was a causal relationship between the diabetes and neuropathy, and that the Veteran’s lay statement of the onset of symptoms was outweighed by the medical opinion. As discussed above, disagreements with how evidence is weighed do not form the basis for CUE. Here, the RO’s initial interpretation of the facts as supporting service-connection for peripheral neuropathy was reasonable, and cannot be categorized as clear and unmistakable error. Accordingly, the Board concludes that the November 2011 rating decision did not contain CUE and the reduction of peripheral neuropathy based on error, was improper. 38 C.F.R. § 3.105(a), (d). While CUE was not found in this case, the Board must determine whether there was an improvement and stabilization of disability for the reduction. 1. The reduction of a 20 percent rating for peripheral neuropathy of the left upper extremity effective August 1, 2014 2. The reduction of a 30 percent rating for peripheral neuropathy of the right upper extremity effective August 1, 2014 A rating reduction is not proper unless the 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). Prior to the reduction of benefits, the Veteran’s peripheral neuropathy of the upper left extremity was rated at 20 percent under diagnostic code (DC) 8699-8614, which is associated with mild or moderate incomplete paralysis, and his peripheral neuropathy of the upper right extremity (dominant side) was rated at 30 percent under the same DC, which is associated with moderate incomplete paralysis. The Veteran contends that his 20 percent and 30 percent ratings for service-connected peripheral neuropathy of the upper extremities should be restored. Specifically, he testified that he experienced numbness in his elbow and the back of his arm, and has pins and needles sensation in his left fingers and palm, accompanied by wrist pain. On initial examination in August 2011, the Veteran had severe paresthesias and/or dysesthesias in all extremities, and less than normal strength in all extremities. The Veteran was also found to have decreased vibration sensation in his lower extremities, and moderate incomplete paralysis of his upper and lower extremities. On VA examination in February 2012, and similarly in June 2012, the Veteran reported that his peripheral neuropathy began 20 years prior, following a motor vehicle accident and resulting exposure to winter elements. He reported dropping items from his hands and tremors. The examination reports reflect mild paresthesias and mild numbness in his upper extremities. The examiner noted the Veteran’s diabetes was diagnosed in 2009, but found that he had no current signs of sensory neuropathy in any extremity. While the examiner noted that his neuropathy predated his diabetes, there was no notation of an improvement in the Veteran’s ability to function concerning a change in the severity of peripheral neuropathy. A VA medical opinion obtained in October 2012, to reconcile the conflicting medical opinions of August 2011 and June 2012, found that the Veteran had mild symptoms of a peripheral neuropathy that predated the development of diabetes, and that he had no significant clinical deficits or signs of peripheral neuropathy. The examiner noted, however, that the Veteran is at risk for worsening of neuropathy signs and symptoms over time because of his diabetes, but that did not appear to have occurred at the time of the opinion. At the March 2014 hearing, the Veteran testified that his peripheral neuropathy of his right upper extremity (his dominant side) had worsened, and that he experienced tremors in his right hand to the extent that he has difficulty signing his name. He described excruciating pain with burning and numbness that goes from his fingers to his elbow. On VA examination in July 2015, the examiner noted the Veteran had intermittent pain in upper extremities, moderate on the right, and mild on the left, with moderate paresthesias and/or dysesthesias in both upper extremities. The Board notes that throughout the claims file, the examinations were inconsistent in labeling the Veteran’s neuropathy as diabetic or sensory, and finds the 2012 examination results to be incongruous. The Veteran was found to have mild paresthesias and/or dysesthesias and mild numbness in his upper extremities, but the examiners went on to state that the Veteran had no current signs of sensory neuropathy in any extremity. Further, even interpreted as an improvement in the Veteran’s condition, a rating for mild incomplete paralysis under DC 8614 is consistent with a 20 percent rating in each upper extremity and not a noncompensable rating as was assigned. See 38 C.F.R. § 4.124(a), DC8614. The Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s service-connected peripheral neuropathy of left or right upper extremities under the ordinary conditions of life and work. Although the cause of the Veteran’s diagnosis may have changed, the Veteran continued to experience mild peripheral neuropathy to a compensable level. Additionally, while not available to the RO at the time of the reduction, the results of the July 2015 examination findings are consistent with ratings of 20 percent for the left upper extremity, and 30 percent for the right under DC 8614. The Board considers this examination result relevant in finding that no actual sustained improvement was demonstrated in the Veteran’s upper extremities, the reduction of benefits was improper, and his benefit ratings should be restored. 3. The reduction of a 20 percent rating for peripheral neuropathy of the left lower extremity effective August 1, 2014 4. The reduction of a 20 percent rating for peripheral neuropathy of the right lower extremity effective August 1, 2014 Prior to the reduction of benefits, the Veteran’s peripheral neuropathy was rated at 20 percent under DC 8699-8620 for each lower extremity which is associated with moderate incomplete paralysis. The Veteran contends that his 20 percent ratings for service-connected peripheral neuropathy of the lower extremities should be restored. At the February 2012 and June 2012 examinations, the examiner noted the Veteran’s service-connected back and leg injuries, but did not link them to his neuropathy. The Veteran had mild intermittent pain in his lower extremities, and mild paresthesias and numbness in his lower extremities. He had decreased range of motion in his right leg and decreased reflexes in both ankles, which the examiner attributed to separate injuries. He also had mild weakness in his lower extremities that the examiner attributed to separate injuries as well. It is worthy of note that on VA examination for his lower back in March 2012, the Veteran was found not to have any neurologic abnormalities, no IVDS, and no radiculopathy. On VA examination in March 2013, the examiner noted only diminished sensation in the Veteran’s left ankle. The examiner also commented that the Veteran’s peripheral neuropathy would prevent the Veteran from physical work, but would not prevent him from obtaining and maintaining employment in a stationary position. At the March 2014 hearing, the Veteran testified that daily, bilaterally, his feet go numb with a pins and needles sensation and he has a burning sensation going up his calves. He stated he has numbness with tingling in his upper thighs, knees, and hips. He also described excruciating pain in his legs. He stated his condition worsened since his last examination in March 2013. At the July 2015 examination, the Veteran had decreased light touch sensation in feet and toes, decreased vibration sensation in the right lower extremity, and severe paresthesias and/or dysesthesias in his bilateral lower extremities. At the 2012 examinations, the examiner did not describe any improvement on the Veteran’s ability to function. Further, even if the 2012 findings were interpreted as an improvement in the Veteran’s condition, a rating for mild incomplete paralysis under DC 8620 is consistent with a 10 percent rating in each lower extremity and not a noncompensable rating as was assigned. See 38 C.F.R. § 4.124(a), DC8620. The Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s service-connected peripheral neuropathy of left or right lower extremities under the ordinary conditions of life and work. Although the cause of the Veteran’s diagnosis may have changed, the Veteran continued to experience mild peripheral neuropathy to a compensable level. Additionally, while not available to the RO at the time of the reduction, the results of the July 2015 examination findings are consistent with ratings of 20 percent or higher under DC 8620. The Board considers this examination result relevant in finding that no actual sustained improvement was demonstrated in the Veteran’s lower extremities, the reduction of benefits was improper and his benefit ratings should be restored. (Continued on the next page)   The Veteran does not bear the burden of demonstrating entitlement to retention of the higher evaluation. Brown v. Brown, 5 Vet. App. 413, 420 (1993). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). The Board finds that VA has not met that burden. Accordingly, reduction of the Veteran’s evaluations from 30 percent for the left upper extremity, and 20 percent for each of his other extremities to 0 percent for peripheral neuropathy were not proper. Therefore, the requirements for restoration have been met. See 38 C.F.R. § 3.344. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel