Citation Nr: 1817248 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-40 605A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether the reduction of a 40 percent rating for right cubital tunnel syndrome (CTS) to a noncompensable rating was proper. 2. Whether the reduction of a 30 percent rating for left CTS to a noncompensable rating was proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1990 to August 1994; from February 2003 to August 2003; and from June 2006 to September 2007. This matter came before the Board of Veterans' Appeals (Board) from a rating decision issued in October 2009 by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. The Veteran testified at a hearing before the undersigned Veteran's Law Judge in August 2012. A transcript of that hearing has been associated with the claims file. In November 2014, the Board remanded the claim for further development. The Board finds that there has been substantial compliance with the instructions of that remand. See Stegall v. West, 11 Vet. App. 268 (1998)(the Board errs as a matter of law when it fails to ensure compliance with its remand instructions). FINDINGS OF FACT 1. In June 2009, the RO proposed to reduce the Veteran's disability rating for right CTS from 40 percent to noncompensable and the rating for left CTS from 30 percent to noncompensable. 2. In an October 2009 rating decision, the RO implemented the proposed reduction in the disability ratings for bilateral CTS, effective as of January 1, 2010; such was made in compliance with applicable due process laws and regulations. 3. The medical evidence at the time of the reduction in the disability rating demonstrated improvement in the Veteran's service-connected bilateral CTS. CONCLUSIONS OF LAW 1. The reduction of the 40 percent rating for service-connected right CTS to a noncompensable rate was proper. 38 U.S.C. §§ 1155, 5107 5112 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.71a, Diagnostic Code 8616 (2017). 2. The reduction of the 30 percent rating for service-connected left CTS to a noncompensable rate was proper. 38 U.S.C. §§ 1155, 5107 5112 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.71a, Diagnostic Code 8616 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, the notice and assist provisions of the VCAA do not apply to rating reductions. See 38 C.F.R. § 3.105 (e). In June 2009, the RO issued the Veteran a rating action proposing to reduce the schedular evaluation assigned for his right CTS from 40 percent to a noncompensable rate, and to reduce the schedular evaluation assigned for his left CTS from 30 percent to noncompensable. That rating action set forth all material facts and reasons for the reduction. In the notice letter accompanying the rating action, the RO informed the Veteran that he had 60 days to submit additional evidence showing that his compensation payments should be continued at their present level, and that he could request a predetermination hearing. In his September 2010 substantive appeal, the Veteran requested that he first be afforded a hearing before a Decision Review Officer (DRO) of the RO and then a travel Board hearing. The DRO hearing was scheduled for September 2011. In a September 2011 letter from the Veteran's representative, it was noted that the Veteran cancelled such a hearing in favor of an Informal Conference and agreed to report for a VA examination. In an October 2009 rating action, the RO effectuated the reductions to a noncompensable rate. The effective date of the reduction was January 1, 2010, which was after the last day of the month in which the 60-day period from the October 2009 notice of the rating action ended. Id. Therefore, the Board finds that VA complied with the procedural due process requirements of 38 C.F.R. § 3.105 (e), and there is no prejudice to the Veteran in adjudicating the appeal. Analysis The Veteran contends that the reduction of his bilateral CTS from their originally-assigned ratings to noncompensable rates was improper. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155 (2012); see also Greyzck v. West, 12 Vet. App. 288, 292 (1999). At the outset, the Board finds not only that the Veteran does not contend, but that the evidence also does not reflect, noncompliance with the procedural requirements for rating reductions. See 38 C.F.R. § 3.105 (e) (requiring, inter alia, notification of the proposed reduction in evaluation, a statement of the facts and reasons for such reduction, and an opportunity to submit evidence against a proposed reduction). Therefore, the Board will focus only upon the propriety of the reduction. The criteria governing certain rating reductions for certain service connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. Historically, service connection was granted for bilateral CTS in a March 2008 rating decision, and a disability rating of 40 percent for right CTS and 30 percent for left was assigned, effective September 18, 2007. In June 2009, when the Veteran was re-examined and the proposed rating was issued, the assigned ratings were in effect for less than 5 years. This remained the case when the reduction was implemented in the October 2009 rating action; at that time, the evaluations had been in effect from September 18, 2007 to January 1, 2010. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) are not applicable. Reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that there are general VA regulations that apply to all rating reductions, regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that it is the reasonability of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Id. A claim as to whether a rating reduction was proper must be resolved in the veteran's favor unless the Board concludes that a preponderance of evidence weighs against the claim. Id. Finally, in determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. In the present case, the Board finds that the reduction of the Veteran's disability rating from 40 percent to noncompensable for service-connected right CTS and 30 percent to noncompensable for service-connected left CTS were proper. Based on a review of the evidence, it was demonstrated that actual improvement in the overall disability under the ordinary conditions of life and work had occurred. The Veteran's bilateral CTS is rated under Diagnostic Code 8616. Under that code, incomplete paralysis of the major and minor ulnar nerve warrants a 10 percent rating when it is mild in degree. A 20 percent rating is warranted for incomplete paralysis of the minor ulnar nerve which is moderate in degree. A 30 percent rating is warranted for incomplete paralysis of the major ulnar nerve which is moderate in degree; and incomplete paralysis of the minor ulnar nerve which is severe in degree. A 40 percent rating is warranted for incomplete paralysis of the major ulnar nerve which is severe in degree. 38 C.F.R. § 4.124a, Diagnostic Code 8616 (2017). When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. At the time that the Veteran's disability ratings were assigned, the evidence of record included a January 2008 VA examination, in which he reported bilateral elbow pain, followed by numbness and paresthesias in the fourth and fifth digits of both hands. He indicated he experienced pain in the elbows, centered over the area of the cubital tunnels. The pain was increased with pushing motions and weightlifting, and was particularly severe after lying for a prolonged period. The Veteran wore elbow braces while sleeping in order to restrict arm flexion. Testing showed tenderness and paresthesias in the elbows, and elbow flexion testing was positive for ulnar nerve compression, bilaterally. At the time, he was diagnosed with bilateral CTS. The report of the June 2009 VA examination, which formed the basis of the reduction, showed that there was no abnormality present at that time. While the Veteran reported that he had some numbness in one or two of his fingers upon waking up, examination showed normal muscle mass, tone, strength, sensation and reflexes of the right hand, and no abnormalities in the left. The examiner concluded that the Veteran's diagnosis of CTS was tenuous, at best, as the only time he experienced symptoms was when he slept with his elbows in abnormal positions, and that the symptoms existed only in certain fingers. The examiner again concluded that there were no abnormalities present at the time of the examination. The Board finds that improvement is shown in this VA examination, as the evidence showed a clear improvement in the Veteran's CTS. There was no finding of a loss of reflexes, muscle atrophy, sensory disturbances, or constant pain. The examiner found that there was likely no basis on which to sustain a diagnosis of CTS. The Board thus finds that, by reducing in severity to an undetectable level, an improvement in the Veteran's service-connected CTS actually occurred, and by its nature such improvement reflected an improvement in the Veteran's ability to function under ordinary conditions of life and work. Importantly, the Veteran underwent additional VA examinations in January 2011, October 2012 and-following the Board's November 2014 remand-August 2016; at each subsequent examination, there continued to be no evidence present of CTS or ulnar nerve neuropathy. Thus, a restoration of the 40 and 30 percent ratings are not shown to be warranted. In summary, the record demonstrates that the procedural requirements for a reduction in rating have been met as specified under the provisions of 38 C.F.R. § 3.105 (e), and the preponderance of the evidence establishes improvement in the Veteran's service-connected peripheral nerve disabilities. Consequently, the Board finds that the reductions were proper. Therefore, the appeal for restoration of a 40 percent rating for right CTS and 30 percent for left CTS must be denied. The preponderance of the evidence is unfavorable to the claim, and under these circumstances the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The reduction in the disability rating from 40 percent to noncompensable for right CTS, effective January 1, 2010, was proper. The reduction in the disability rating from 30 percent to noncompensable for left CTS, effective January 1, 2010, was proper. ____________________________________________ L.M.BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs