Citation Nr: 1813293	
Decision Date: 03/07/18    Archive Date: 03/14/18

DOCKET NO.  14-33 882	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for residuals of a shell fragment wound (SFW) of the right foot with retained foreign bodies (group X and XI muscle injuries) and posttraumatic arthritis midfoot periarticular cuboid and secondary chronic/traumatic tendonitis of the peroneus longus and brevis for the period prior to August 26, 2014, in excess of 40 percent from August 26, 2014 through December 2, 2016, and in excess of 20 percent thereafter, to include the propriety of the reduction from 40 percent to 20 percent beginning December 2, 2016.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Peters, Counsel

INTRODUCTION

The Veteran had active duty service from May 1969 to May 1971, with service in the Republic of Vietnam from October to December 1969, for which he was awarded a Purple Heart.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in May 2017.


FINDINGS OF FACT

1.  The Veteran's group X muscle injury has been evaluated as a moderately severe disability for more than 20 years and therefore that finding is protected.  

2.  Throughout the period prior to August 26, 2014, the Veteran's group X muscle injury is not shown to have the manifestations of a severe muscle injury.  

3.  Throughout the period prior to August 26, 2014, the Veteran's muscle group XI is shown to have at least a moderate disability.  

4.  The evidence does not show that at the time of the reduction there was actual improvement of the Veteran's right foot SFW residuals to include in the ability to function in the ordinary conditions of life and work.


CONCLUSIONS OF LAW

1.  The criteria for establishing a combined 30 percent evaluation, but no higher, for right foot SFW residuals have been met.  38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.55, 4.56, 4.59, 4.71a, 4.73, Diagnostic Codes 5270, 5310, 5311 (2017).

2.  The reduction in rating from 40 percent to 20 percent, effective August 26, 2014, for the Veteran's right foot SFW residuals is void ab initio.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.344 (2017).

3.  The criteria for establishing an evaluation in excess of 40 percent for the right foot SFW residuals for the period since August 26, 2014, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.55, 4.56, 4.59, 4.71a, 4.73, Diagnostic Codes 5270, 5310 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017).  This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  With respect to the claim herein decided, VA has met all statutory and regulatory notice and duty to assist provisions.  See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); 

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  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.  38 C.F.R. § 4.10.  

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

In determining the appropriate disability rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.  

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).  

The Veteran filed his claim for increased evaluation for his right foot SFW residuals on July 13, 2010.  

Throughout the appeal period, for the period prior to August 26, 2014, the Veteran was assigned a 20 percent evaluation for his right foot SFW residuals under 38 C.F.R. § 4.73, Diagnostic Code 5310; for the period of August 26, 2014 through December 2, 2016, he has been assigned a 40 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5270; and, finally, beginning December 2, 2016, his evaluation for his right foot SFW was reduced to 20 percent disabling, assigned under Diagnostic Code 5310.  

The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55 and 4.56.  A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged.  38 C.F.R. § 4.56(b).  For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement.  38 C.F.R. § 4.56(c).

Under Diagnostic Codes 5301 to 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, and severe.  The type of disability associated with a slight muscle disability is a simple wound of muscle without debridement or infection.  A history with regard to this type of injury should include service department record of superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of muscle disability.  Objective findings should include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function or metallic fragments retained in muscle tissue.  38 C.F.R. § 4.56(d)(1).

The type of injury associated with a moderate muscle disability is a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.  A history with regard to this type of injury should include service department record or other evidence of in-service treatment for the wound and record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use affecting the particular functions controlled by the injured muscles.  Objective findings should include entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

The type of injury associated with a moderately severe muscle disability is a through-and-through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.  A history with regard to this type of injury should include service medical record or other evidence showing prolonged hospitalization for treatment of wound, record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements.  Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side.  Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).

The type of injury associated with a severe disability of muscles is a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.  A history consistent with this type of injury would include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound, record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements.  Objective findings of a severe disability would include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area; muscles swell and harden abnormally in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 

If present, a severe injury would also show x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; or induration or atrophy of an entire muscle following simple piercing by a projectile.  38 C.F.R. § 4.56(d)(4). 

For purposes of evaluation, the skeletal muscle groups are divided into 5 anatomical regions, which include (1) the shoulder girdle and arm region (Diagnostic Codes 5301-5306); (2) the forearm and hand region (Diagnostic Codes 5307-5309); (3) the foot and leg region (Diagnostic Codes 5310-5312); (4) the pelvic girdle and thigh region (Diagnostic Codes 5313-5318); and, (5) the torso and neck region (Diagnostic Codes 5319-5323).  See 38 C.F.R. § 4.55(b) (2017).  

A muscle injury rating will not be combined with a peripheral nerve paralysis ratings of the same body part, unless the injuries affect entirely different functions.  38 C.F.R. § 4.55(a).  Moreover, no rating will be assigned for muscle groups which act upon an ankylosed joint, with exception of muscles groups that act upon an ankylosed knee or shoulder joint.  See 38 C.F.R. § 4.55(c).  

Additionally, when there are compensable muscle group injuries in the same anatomical region but do not act on the same joint, the evaluation of the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups.  See 38 C.F.R. § 4.55(e).  Furthermore, when muscle groups are in different anatomical regions which do not act upon ankylosed joints, each muscle group should be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25.  See 38 C.F.R. § 4.55(f).  However, the combined evaluation of muscle groups acting upon an unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon a shoulder.  See 38 C.F.R. § 4.55(d)

Under Diagnostic Code 5310, for muscle injuries of group X, which involves movement of the forefoot and toes and propulsion in walking, and affects the plantar muscles: (1) flexor digitorum brevis; (2) abductor hallucis; (3) abductor digiti minimi; (4) quadratus plantae; (5) lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis; (8) flexor digiti minimi brevis; (9) dorsal and plantar interossei, and other important plantar: plantar aponeurosis, long plantar and calcaneonavicular ligament, tendons of posterior tibial, peroneus longus, and long flexors of great and little toes, a slight muscle injury is assigned a noncompensable evaluation.  A moderate muscle injury is assigned a 10 percent evaluation.  A moderately severe muscle injury is assigned a 20 percent evaluation.  A 30 percent evaluation is warranted for a severe muscle injury.  

When muscle injuries of group X affect the dorsal muscles: (1) extensor hallucis brevis; (2) extensor digitorum brevis, and other important dorsal structures: cruciate, crucal, deltoid, and other ligaments, and tendons of long extensors of toes and peronei muscles, a slight muscle injury is assigned a noncompensable evaluation.  A 10 percent evaluation is warranted for moderate and moderately severe muscle injuries, and a 20 percent evaluation is assigned for a severe muscle injury.  See 38 C.F.R. § 4.73, Diagnostic Code 5310 (2017).  However, a minimum rating of 10 percent rating must be assigned for through-and-through wounds of the foot.  See Id., Note.  

Under Diagnostic Code 5311, for muscle injuries of group XI, which involves propulsion, plantar flexion of the foot (1) stabilization of arch (2, 3); flexion of toes (4, 5), and flexion of the knee (6) and involves posterior and lateral crucal muscles and muscles of the calf, including: (1) triceps surae (gastrocnemius and soleus); (2) tibialis posterior; (3) peroneus longus; (4) peroneus brevis; (5) flexor hallucis longus; (6) flexor digitorum longus; (7) popliteus; and (8) plantaris, a slight muscle injury is assigned a noncompensable evaluation.  A moderate muscle injury is assigned a 10 percent evaluation.  A moderately severe muscle injury is assigned a 20 percent evaluation.  A 30 percent evaluation is warranted for a severe muscle injury.  See 38 C.F.R. § 4.73, Diagnostic Code 5311 (2017).  

Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating.  If ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, a 30 percent rating is warranted.  If ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity, a 40 percent rating is warranted.  See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2017).


Increased Evaluation for the Period Prior to August 26, 2014

Historically, November 1969 service treatment records document that the Veteran sustained a gunshot wound of the right foot that resulted in a fracture of his cuboid; it was noted that his gunshot wound was an open, penetrating wound, without nerve or artery involvement.  The Veteran's gunshot wound was treated with debridement and for infection.  Approximately 5 days later, the Veteran's neurological examination was normal at that time, although he had a large wound on the lateral aspect of his right foot.  X-rays showed a cortical fracture of his right cuboid; later x-rays would demonstrate retained metallic fragments in his right foot.  It was noted that the wound was nearly healed at that time, and the Veteran was transferred back to the United States from the Republic of Vietnam at that time.  

A hospital narrative summary revealed that the Veteran was hospitalized from December 1969 to May 1970 for treatment for his right foot SFW.  Initially, the Veteran's right lower extremity was in a short leg cast; x-rays showed a fracture of the cuboid with retained metallic fragments.  Eventually, he was allowed to begin weightbearing and then placed in a short leg brace with steel upright with a free ankle.  The Veteran's pain decreased somewhat and he walked with a limp at the time of his discharge from the hospital.  On his separation examination, the Veteran's right foot was noted to have a healed gunshot wound of the right foot; he had 10 degrees of dorsiflexion at that time.  

On separation, VA has assigned the Veteran a 20 percent evaluation for his right foot SFW residuals since discharge from service in 1971.  The Board reflects that the Rating Schedule for muscle injuries of the foot and leg are unchanged since that evaluation.  A 20 percent evaluation commensurates to a moderately severe muscle injury of the plantar surface of his foot for group X.  The Veteran's group X rating is protected at this time.  See 38 C.F.R. § 3.951.  

The Veteran filed his claim for increased evaluation of his right foot SFW residuals on July 13, 2010.  At that time, he reported that he walked with a limp and that the pain in his foot has gotten worse.  He also reported having trouble staying on his feet all day long at his job, and that his foot swells and aches all day long, even when he sleeps.  In August 2010 statements, the Veteran, his co-worker, and his spouse, all reiterated substantially similar complaints and observations of the Veteran's right foot symptoms.  

In August 2010, the Veteran underwent a VA examination of his right foot SFW residuals disability.  The examiner noted the extensive history of the Veteran's SFW and subsequent treatment during service; the examiner also noted an August 2007 x-ray of his right foot.  

During the examination, the Veteran reported progressive problems of his right foot, particularly with pain.  He had a lot of tenderness in the medial aspect of his right forefoot and chronic aching of the right foot; he noted stiffness, occasional swelling, but denied redness or warmth.  He also reported weakness with fatigability and lack of endurance, particularly with walking or standing.  His pain of the right foot was also aggravated with standing and walking; he stated that he could stand for about 30 minutes before having to sit down, and he was limited to walking one block.  He reported occasional use of a cane.  He denied using a right lower extremity brace or any corrective shoes.  He had "mild to moderate (more moderate)" functional limitations with standing and walking due to his right foot symptoms.  The Veteran further indicated that he takes pain medications and has had to reduce the number of hours he worked in approximately half over the past year; he reported mostly spending his work time off his feet sitting behind a desk.  He reported a moderate effect on his activities of daily living.  

On examination, the Veteran had a bony prominence in his right mid-forefoot, particularly in the medial aspect of his right foot.  There was also noted tenderness in the medial aspect, around the bony deformities.  He had painful motion of the right forefoot, particularly in the first and secondary metatarsal areas.  There was no swelling, edema, or particular weakness noted.  He had essentially normal range of motion and strength in the toes.  

The Veteran had an erect gait with a significant limp on the right foot, which was especially noted upon first standing and attempting to walk and leveled off somewhat after further walking; he did not utilize any ambulatory aids, however.  The examiner noted mild to moderate functional limitations with standing, walking, weightbearing and propulsion with abnormal carriage evident.  His feet did not demonstrate any callosities or breakdown.  The examiner noted no evidence to hallux valgus, hammertoes, or clawfoot.  

The Veteran underwent another VA examination in March 2011, although that examination focused on his bilateral knees.  The Veteran's complaints with regards to his right foot were substantially similar to those noted in his August 2010 examination.  The examiner further noted a significant right foot limp as previously described.  Regarding the Veteran's right ankle, it was noted that he had 20 degrees of dorsiflexion and 45 degrees of plantar flexion on active and passive range of motion testing; there was no particular painful motion noted at that time, nor was there any tenderness, swelling, redness or warmth of the right ankle noted at that time.  There also was no ankylosis, deformities or instability of the right ankle noted at that time.  

In his April 2011 Notice of Disagreement, the Veteran again reported having pain all day long in his right foot; he described the pain as unbearable.  He further indicated that he cannot stand or walk for long periods of time.  In another April 2011 statement, the Veteran reported similar problems with limping, pain and functional limitations due to his right foot disability.  

On August 26, 2014, the Veteran underwent another VA examination solely of his right ankle.  The Veteran's right foot SFW residuals were noted to involve the cuboid bone and the surrounding area; he was also noted to have chronic/traumatic tendonitis of the peroneus longus and brevis, and posttraumatic arthritis of the midfoot periarticular cuboid.  During that examination, the Veteran reported substantially similar right foot and ankle symptoms as described above.  

On examination, the Veteran was noted to have range of motion to 30 degrees of plantar flexion with pain and 0 degrees of dorsiflexion; his range of motion was unchanged after repetitive use testing.  The examiner noted that there was no additional functional loss of the right ankle after repetitive use testing.  However, the examiner noted that the Veteran had less movement than normal, weakened movement, excessive fatigability, pain on movement, atrophy of disuse, disturbance of locomotion, and interference with sitting, standing and weightbearing of the right ankle; he was noted to be unable to put full weight on his right lower extremity without significant pain.  

The Veteran had localized pain or tenderness on palpitation and slightly decreased muscle strength testing.  He did not have any right ankle instability, although the examiner noted that the Veteran had ankylosis of the right ankle in dorsiflexion at more than 10 degrees.  The examiner noted x-rays showed arthritis of the right midfoot.  The examiner concluded that the Veteran had problems with prolonged standing and walking due to right foot pain and stiffness; the examiner also concluded that additional functional limitation due to the noted factors above was not feasible as it would require mere speculation.  

The Board has reviewed the Veteran's VA treatment records throughout the appeal period, particularly for July 2009 and through August 2014, demonstrate substantially similar findings as noted in the above VA examinations.  

The Board acknowledges, however, that none of those examinations were Muscle Injury examinations.  The first evidence of any Muscle Injury examination was in December 2016.  As noted in that examination, the Veteran had a penetrating muscle injury; substantially similar reports of symptoms were noted at that time by the examiner as noted by the previous examiners.  On examination, the Veteran was noted to have a muscle injury of groups X and XI.  The examiner noted there was no history of rupture of the diaphragm with herniation, extensive muscle hernia, or injury of the facial muscles.  Likewise, the examiner noted that the Veteran did not have any known fascial defects, nor did the Veteran's muscle injuries affect muscle substance or function.  The examiner noted that the Veteran had consistent weakness and consistent lowered threshold of fatigue associated with his muscle injuries.  He had slightly decreased muscle strength in right ankle plantar flexion and dorsiflexion; there was no evidence of muscle atrophy, however.  The Veteran was noted to occasionally use a cane.  X-rays of the right foot showed shrapnel in the right lateral foot in the cuboid region.  

Based on the foregoing evidence, the Board finds that a combined 30 percent evaluation for the Veteran's muscle injuries under Diagnostic Code 5310 is warranted throughout the appeal period.  Specifically, the Board recognizes that the Veteran has a moderately severe muscle injury of muscle group X that is protected.  Throughout the appeal period prior to August 26, 2014, the foregoing evidence does not demonstrate that the Veteran's group X muscle injury is manifested by symptomatology associated with a severe muscle disability as described under 38 C.F.R. § 4.56(d)(4); in particular, there is no visible or measurable atrophy, adaptive contraction of an opposing group of muscles, or induration or atrophy of an entire muscle following simple piercing by a projectile.

In the historical narrative, particularly the July 1971 rating decision on which that above noted protected rating is based, there is no evidence of any effect of the muscle group XI at that time.  However, since filing the Veteran's increased evaluation claim in July 2010, it is shown that there is now involvement of both muscle groups X and XI, including tendonitis of the peroneus longus and brevis.  The evidence of record indicates that the Veteran had "mild to moderate (more moderate)" effects due to his muscle injuries throughout the appeal period prior to August 26, 2014.  In short, the Veteran has at least a moderate (compensable) group XI muscle disability for the period prior to August 26, 2014.  

Consequently, under the provisions of 38 C.F.R. § 4.55(e), the Board finds that an increased evaluation to 30 percent as a combined evaluation for the two muscle groups in the same anatomical region is warranted at this time (i.e., a moderately severe group X injury is increased to a severe injury when combining the moderate disability under group XI) under Diagnostic Code 5310.  

Such a combined evaluation comports with the provisions of 38 C.F.R. § 4.55(d), as the combined 30 percent evaluation is less than the highest possible evaluation of 40 percent available under Diagnostic Code 5270.  The Board additionally notes that such is the highest possible evaluation for a muscle injury under the applicable provisions of the Rating Schedule in this case.  

During the period prior to August 26, 2014, however, a 40 percent evaluation under Diagnostic Code 5270 is not warranted as there is no evidence of ankylosis of the Veteran's right ankle.  The first evidence of any ankylosis is on August 26, 2014, during the VA examination; prior to that date, right ankle ankylosis was not shown in any of the evidence of record, particularly the VA examinations.  

Accordingly, a combined 30 percent evaluation under Diagnostic Code 5310, but no higher, is warranted for the appeal period prior to August 26, 2014.  See 38 C.F.R. §§ 4.55, 4.56, 4.71a, 4.73, Diagnostic Codes 5270, 5310, 5311.  


Increased Evaluation for the Period Beginning August 26, 2014, 
to Include Propriety of the Reduction Effective December 2, 2016

For the period beginning August 26, 2014, the AOJ awarded the Veteran a 40 percent evaluation under Diagnostic Code 5270 for his right foot SFW residuals on the basis of the August 26, 2014 VA examination findings, which demonstrated right ankle ankylosis at more than 10 degrees of dorsiflexion, as a result of his right foot SFW residuals.  The Board, however, does reflect that the Veteran's right ankle also demonstrated range of motion in plantar flexion to 30 degrees, although there was no range of motion (0 degrees) in dorsiflexion at that time.  

The AOJ reduced the Veteran's evaluation to 20 percent under Diagnostic Code 5310, beginning on December 2, 2016, in a January 2017 rating decision, based on the findings shown in the VA right ankle examination on that date.  The Veteran's right ankle did not have no ankylosis at that time, and the examiner noted range of motion findings to 10 degrees of dorsiflexion and to 25 degrees of plantar flexion.  

The initial issue before the Board at this time is the propriety of that reduction from 40 percent disabling to 20 percent disabling, effective December 2, 2016.  Initially, generally, when reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments there are certain due process and notification requirements that must be met.  However, in this case, the Veteran's overall combined compensation was not affected by the reduction from 40 percent to 20 percent in December 2016.  Accordingly, the Board finds that the provisions of 38 C.F.R. §3.105(e) are not applicable in this particular case.  

Turning to the propriety of that action, a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred.  38 C.F.R. § 3.344.  The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999).  

Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.  See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see Brown v. Brown, 5 Vet. App. 413, 420 (1993).  These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Such review requires VA to 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.  Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 350 (2000).  

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) and (b).  These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension.  

The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve.  Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating.  

As an initial matter, 38 C.F.R. § 3.344(a) and (b) are not applicable in the case at bar as the Veteran's 40 percent rating for his right foot SFW residuals was assigned beginning August 26, 2014.  Thus, the 40 percent rating was not in effect for greater than 5 years as of December 2, 2016.

Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored.  Schafrath, 1 Vet. App. at 595.  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 he is entitled to retain the higher rating; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted.  See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993).

In the January 2017 rating decision, the AOJ found that during the December 2, 2016 VA examination the Veteran's right foot SFW residuals demonstrated an improvement in his condition; specifically, it was noted that the August 2014 examination was not as full and complete an examination as the December 2016 examination, as the August 2014 examiner only examined the right ankle where the December 2016 examiner examined the right foot, right ankle and muscle injuries.  Based on review of the history of the right foot SFW residuals, and the August 2014 and December 2016 VA examinations, the AOJ found that because the Veteran's right ankle no longer demonstrated ankylosis in the December 2016 VA examination, a reduction to 20 percent was warranted because he "no longer [met] the . . . criteria" for a 40 percent evaluation under Diagnostic Code 5270.  

Although the AOJ found that there was an "improvement" in the Veteran's disability-namely, there was no longer ankylosis of the right ankle-the AOJ did not analyze whether there was actual improvement "in the Veteran's ability to function under the ordinary conditions of life and work."  

To this point, the Board reflects that many of the Veteran's complaints regarding "considerable pain," inability to put full weight on his right foot, a limp, cramping in his right leg, and high doses of pain medication noted during the August 2014 examination are the same or similar complaints as noted in the Veteran's December 2016 VA examination and during his May 2017 Board hearing.  

Based on the above evidence and the AOJ's specific lack of findings regarding actual improvement in the ordinary conditions of work and life, the Board finds that the reduction of the Veteran's disability rating for his right foot SFW residuals is void ab initio due to the failure of the AOJ to make the proper findings under Faust as noted above.  The Veteran's 40 percent rating for his right foot SFW residuals is restored.  See 38 C.F.R. § 3.344(c); Faust, supra.

The Board notes that restoration of the Veteran's 40 percent evaluation represents an assignment of the highest possible evaluation for the Veteran's right foot SFW residuals under Diagnostic Code 5270.  Moreover, as noted above, because VA has assigned an evaluation for the Veteran's ankylosed right ankle, no evaluations under the Veteran's muscle group injuries can be assigned in this case, nor can the Board assign a separate neurological evaluation.  See 38 C.F.R. § 4.55(a), (c).  

Accordingly, the Board finds that the assignment of a 40 percent since August 26, 2014, is the highest possible evaluation available for the Veteran's right foot SFW residuals in this case; therefore, the Board must deny an evaluation in excess of 40 percent at this time.  See 38 C.F.R. §§ 4.55, 4.56, 4.71a, 4.73.  

In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

A combined 30 percent evaluation for right foot SFW residuals for the period prior to August 26, 2014, is granted.  

The reduction in rating for the right foot SFW residuals was not proper; restoration of the 40 percent rating is granted, effective August 26, 2014.

An evaluation in excess of 40 percent for the right foot SFW residuals for the period since August 26, 2014, is denied.  



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs