Citation Nr: 18157036 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-20 320 DATE: December 11, 2018 ORDER The rating reduction for residuals, left peroneus tendon tear from 20 percent to 10 percent effective May 1, 2016 was improper and the 20 percent rating is restored. FINDING OF FACT At the time of the May 2016 reduction, the 20 percent rating for residuals, left peroneus tendon tear had been in effect more than five years and reduced the Veteran’s overall percentage of compensation; the evidence of record does not show sustained material improvement of the left ankle condition that represents improvement under the ordinary conditions of life. CONCLUSION OF LAW The reduction of the rating for residuals, left peroneus tendon tear, effective May 1, 2016, was improper, and restoration is warranted. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.71a Diagnostic Code 5271. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1998 to January 2002. She also had active duty for training from July 1993 to November 1993. Generally, VA must abide by specific procedural protections that apply when a veteran’s rating is reduced. 38 C.F.R. § 3.105(e). In this case, the Board is restoring the 20 percent rating for residuals, left peroneus tendon tear, effective May 1, 2016, the date the reduction was implemented. As such, any discussion as to compliance with the procedural requirements of 38 C.F.R. § 3.105(e) is rendered moot. In this case, the 20 percent disability rating for residuals, left peroneus tendon tear was in effect from January 7, 2002 to May 1, 2016, a period of more than five years. Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) apply, which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. Where a rating has been in effect for five years or more, as in this case, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for disease subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). 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). In determining whether a reduction was proper, the Board must focus upon evidence available to the Regional Office (RO) at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. Since January 2002, the Veteran’s residuals, left peroneus tendon tear have been rated under Diagnostic Code (DC) 5271. Under DC 5271, a 10 percent evaluation is assigned for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a 20 percent rating is assigned for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). See 38 C.F.R. § 4.71a, DC 5271. 20 percent is the highest rating available for limited motion of the ankle. Higher ratings require the presence of ankylosis. See 38 C.F.R. § 4.71a, DC 5270. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Turning to the evidence, service connection for residuals, left peroneus tendon tear was granted in a December 2001 rating decision. A 20 percent rating was assigned based on findings at an August 2001 VA examination showing the Veteran was in a walking boot and had pain in the left Achilles with or without movement. Motion of the ankle was limited with extension to 5 degrees and flexion to 10 degrees both with pain. In June 2002, the Veteran underwent another VA examination. It was noted she had undergone surgery in October 2001 and was still experiencing daily pain. Range of motion of the ankle was limited with flexion to 30 degrees and extension to 15 degrees both with pain. In a June 2002 rating decision, the 20 percent rating was continued. In March 2004, the Veteran underwent an additional VA examination. It was noted she had a history of problems with the posterolateral aspect of her left ankle with pain and tenderness. She continued to be treated conservatively with weight reduction and rest. The Veteran indicated she continued to have pain that was aggravated by walking and flared-up during the winter months. Pain was noted with motion of the ankle, although the Veteran could extend the ankle through a full range of motion from 20 degrees of dorsiflexion to about 50 degrees in flexion. Inversion and internal rotation of the ankle also caused pain, although motion was full. The 20 percent rating was continued in an April 2004 rating decision. In April 2013, the Veteran filed a claim for an increased rating for her residuals, left peroneus tendon tear. At a December 2013 VA examination, she reported experiencing pain and the inability to stand or walk for long periods of time. Plantar flexion was to 30 degrees with objective evidence of painful motion beginning at 25 degrees. Plantar dorsiflexion was normal with objective evidence of painful motion beginning at 5 degrees. Less movement than normal and disturbance of locomotion were noted on the left. Ankylosis was not present. In a February 2014 rating decision, it was noted recent evidence showed improvement in the condition, but sustained improvement had not been definitively established. The 20 percent rating was continued and the Veteran was informed that since there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future examination. In June 2015, the Veteran underwent routine future examinations of her feet and ankles to reassess the severity of her residuals, left peroneus tendon tear. The Veteran reported she still experienced “achiness and swelling” with prolonged walking or standing. She noted experiencing pain as “aching to throbbing especially at night.” She indicated limping during flare-ups and that she had to sit with her foot elevated. Pain on manipulation of the feet was noted, along with swelling on use. She reported use of orthotics. Excess fatigability, pain on movement, pain on weight-bearing and lack of endurance were contributing factors of disability. She was unable to participate in job duties that required stooping, carrying heavy items, prolonged standing, and walking. Range of motion of the left ankle was normal and ankylosis was not present. In a July 2015 rating decision, the RO proposed to reduce the evaluation for residuals, left peroneus tendon tear from 20 percent to 10 percent given the finding that the Veteran no longer had marked limitation of motion in her ankle. In an August 2015 statement, the Veteran indicated her condition had not improved. She stated she was unable to stand for over 20 minutes without increased pain or to walk for any period without pain and soreness. She reported her quality of life was directly impacted by her injury and most nights the pain kept her awake or woke her up. She indicated the pain had not gotten better and was worse than before. She stated she could not walk, hike or ride a bike with her children because of pain in her ankle that sometimes flared-up such that she had to sit and rest. In the February 2016 rating decision, the rating reduction from 20 percent to 10 percent was effectuated given the lack of medical evidence demonstrating that limitation of motion had not improved. In her February 2016 notice of disagreement and April 2017 Form 9, the Veteran again argued her residuals, left peroneus tendon tear had not healed or improved. She continued to experience pain when she walked, moved or applied pressure to her foot. She indicated difficulty on stairs and an inability to stand for long periods of time. She reported the pain was chronic and persistent limiting her movement and quality of life. She stated the loss of movement due to pain made all daily activities difficult and she experienced a constant, dull ache while resting. Based on the forgoing, the evidence does not support a finding that overall improvement of the service-connected residuals, left peroneus tendon tear had occurred when the reduction was effectuated in May 2016. The Veteran has continually experienced pain in her foot and ankle that limits her activities, to include walking, climbing stairs, biking and running. Despite improvement of range of motion, the Veteran continues to be limited by pain, stiffness and swelling in her left foot and ankle. Looking at the evidence in the light most favorable to the Veteran, the Board cannot conclude that the weight of the evidence shows a material improvement in the Veteran’s condition that is reasonably certain to be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344; Brown v. Brown, 5 Vet. App. 413 (1993). Accordingly, the Board finds that reduction was improper and that the Veteran is entitled to restoration of the 20 percent rating for residuals, left peroneus tendon tear effective the date of the reduction, May 1, 2016. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel