Citation Nr: 19111925 Decision Date: 02/15/19 Archive Date: 02/14/19 DOCKET NO. 15-38 222 DATE: February 15, 2019 ORDER The reduction of the 10 percent disability rating to 0 percent for peripheral neuropathy of the left lower extremity effective October 1, 2014 was not proper; restoration of the 10 percent rating for peripheral neuropathy of the left lower extremity is granted. REMANDED Entitlement to an increased rating for right upper extremity peripheral neuropathy, to include whether a reduction from a 10 percent disability rating to a noncompensable rating was proper, is remanded. Entitlement to an increased rating for right lower extremity peripheral neuropathy, to include whether a reduction from a 10 percent disability rating to a noncompensable rating was proper, is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. FINDING OF FACT The rating reduction for peripheral neuropathy of the left lower extremity did not comport with applicable statutes and regulations. CONCLUSION OF LAW The reduction of the left lower extremity peripheral neuropathy rating is void ab initio, and the criteria for restoration of the 10 percent rating for this condition are met. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §3.344 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to April 1966. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018. A transcript of that hearing is associated with record. The Board notes that the origin of the present appeal was the Veteran’s July 2013 claim for increased ratings for his service-connected peripheral neuropathy, which ultimately resulted in the RO’s reduction of the assigned ratings from 10 percent to 0 percent (noncompensable). The Veteran in effect appealed both the reduction and the denial of disability ratings in excess of 10 percent. Thus, the issues are as reflected above. In addition, while the September 2015 Statement of the Case (SOC) lists “peripheral neuropathy, left lower extremity” as the issue, the content of the document refers to “peripheral neuropathy, right upper extremity” as the issue. As the September 2015 rating decision granted a 10 percent rating for “peripheral neuropathy, right upper extremity,” the Board finds “right upper extremity” was a typographical error in the SOC and that “peripheral neuropathy, left lower extremity” is the correct issue before the Board. Whether the rating reduction from 10 percent to noncompensable for peripheral neuropathy of the left lower extremity was proper The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the Veteran’s condition). In July 2013, the Veteran filed a claim seeking an increased rating for his peripheral neuropathy. Per a February 2014 rating decision, the Veteran was informed of the proposal to reduce the disability rating assigned from 10 percent disabling to 0 percent disabling. In a February 2014 statement, the Veteran expressed his disagreement with the proposed rating change. Action taken to reduce the rating from 10 percent disabling to 0 percent, effective October 1, 2014, was taken pursuant to 38 C.F.R. § 3.105(e) in an July 2014 rating decision. When a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). In this case, where the Veteran’s combined evaluation for compensation was reduced from 50 percent to 30 percent, the July 2014 rating decision was issued more than 60 days after the February 2014 proposed rating decision; therefore, the predetermination procedures specified in 38 C.F.R. § 3.105(e) have been met. After completing the predetermination procedures specified in 38 C.F.R. § 3.105(e), the RO must send written notice of the final action. This notice must set forth the reasons for the action and the evidence upon which the action is based. Id. Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action 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. Id. Here, the reduction was effectuated in a July 2014 rating decision, accompanied by a July 2014 notice letter; the effective date of the reduction was October 1, 2014. The RO satisfied the requirements by allowing a 60-day period to expire before assigning the new effective date for the rating. As the procedural requirements for a reduction under 38 C.F.R. § 3.105(e) were appropriately followed here, the Board may turn to the substance of the claim, namely, whether the evidence shows actual improvement in the rated disability at issue. It should also be pointed out that the initial reduction, taken within less than five years from the award of the 60 percent rating, is not governed by the provisions of 38 C.F.R. § 3.344 (a)-(b) regarding stabilization of ratings. See Collier v. Derwinski, 2 Vet. App. 247, 249 (1992). Instead, a rating may be reduced on the basis of examination showing improvement. 38 C.F.R. § 3.344(c). In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, peripheral neuropathy of the left lower extremity rated under the criteria found at 38 C.F.R § 4.124a, DC 8520 for paralysis of the sciatic nerve. DCs 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such use is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In this case, the Board finds that the evidence did not show material improvement of the peripheral neuropathy of the left leg or that the improvement would be maintained under the ordinary conditions of life and work; therefore, the rating reduction was improper, and the criteria for restoration of a 10 percent ratings for peripheral neuropathy of the left lower extremity, effective October 1, 2014, have been met. Historically, in the February 2012 rating decision, the RO granted service connection for peripheral neuropathy of the left lower extremity, and assigned a 10 percent rating under DC 8520 effective from September 6, 2011. The RO granted a 10 percent rating based on the December 2011 VA examination findings showing sensory function decreased on the left cutaneous foot nerve based on the modality of pinprick and absent knee jerk and ankle jerk reflexes. Thus, there was sensory dysfunction demonstrated by decreased sensory in the left foot, but no motor dysfunction so that a 10 percent schedular rating under DC 8520 for mild incomplete paralysis of the sciatic nerve was warranted. At the time of the rating reduction decision, the evidence showed that the criteria for a 10 percent rating under DC 8520 were met. During the December 2013 VA examination, the Veteran denied any complaints to the lower extremities such as pain, tingling sensation, or numbness. Examination revealed normal muscle strength, normal reflexes, and normal sensory testing and noted that the Veteran did not have peripheral neuropathy. However, the December 2013 VA examiner also remarked that for the VA established diagnosis of peripheral neuropathy, there was no change in the diagnosis and at that time and the Veteran’s claimed condition is mild tingling sensation. Nonetheless, the AOJ reduced the 10 percent rating for left lower extremity peripheral neuropathy finding that the Veteran was asymptomatic. When compared to the evidence of record when the 10 percent ratings for peripheral neuropathy of the left lower extremity was awarded, the evidence at the time of the rating reduction reflected some improved peripheral neuropathy as manifested by improved reflexes (i.e., improved from absent knee and ankle jerk to normal knee and ankle jerk), and improved sensation (i.e., improved from sensory deficit of the left foot demonstrated on sensory testing to a normal sensory examination of the left foot). This evidence shows that symptoms of the left lower extremity peripheral neuropathy had improved so that motor and sensory deficits were no longer objectively demonstrated in the lower extremities at the time of the rating reduction decision. However, subjectively, the Veteran claimed to have tingling in his feet. Although the December 2013 VA examination is contradictory regarding whether the Veteran had tingling, subsequent VA treatment records, specifically in March 2014 reflect that the Veteran had tingling in his feet which was worse at night. In addition, VA treatment records dated in September 2014 reflect the Veteran complained of feet pain, burning, and numbness and was prescribed gabapentin at that time. In addition, like the December 2013 VA examination report, a May 2015 VA examination report shows that left lower extremity peripheral neuropathy was manifested by normal muscle strength testing, normal reflexes, and normal sensation on testing. However, during the August 2018 Board hearing, the Veteran stated that he continues to take gabapentin which helps with the nerve pains and that he may not have been feeling pain at the time of the examinations. The Board finds that although there may have been some improvement, the most probative evidence indicates that there has not been material improvement in the Veteran’s left lower extremity peripheral neuropathy. Further, the evidence does not reflect an increased neurological function involving the left lower extremity under the ordinary conditions of life and work. The July 2014 rating decision reflects no suggestion of any consideration of 38 C.F.R. § 3.344. Thus, the RO did not address whether reexamination disclosed sustained material improvement. Nor did the RO address whether any improvement in the disability actually reflected an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22. Based on the evidence above, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s service-connected left lower extremity peripheral neuropathy did not undergo material improvement, including under the ordinary conditions of life and work; therefore, at the time of the July 2014 rating decision, the reduction, effective October 1, 2014, was not warranted. See generally 38 C.F.R. § 3.344. Thus, the rating reduction was not proper, and the 10 percent rating is restored.   REASONS FOR REMAND 1. Entitlement to an increased rating for right upper extremity peripheral neuropathy, to include whether a reduction from a 10 percent disability rating to a noncompensable rating was proper, is remanded. 2. Entitlement to an increased rating for right lower extremity peripheral neuropathy, to include whether a reduction from a 10 percent disability rating to a noncompensable rating was proper, is remanded. As discussed above, the July 2014 rating decision also assigned a noncompensable rating for the Veteran’s peripheral neuropathy of the right lower and right upper extremities effective October 1, 2014. In the September 2014 notice of disagreement, the Veteran appealed the rating assigned. In a September 2015 rating decision, the RO granted a 10 percent rating for each from December 16, 2014. The RO stated in the rating decision that the foregoing represented a full grant of the claims. However, as the ratings were effective only from December 16, 2014, a complete grant was not awarded for the period prior to that date from October 1, 2014. As such, the issues of entitlement to an increased rating for right upper and lower extremity peripheral neuropathy, to include whether the reductions from 10 percent disability ratings to noncompensable ratings were proper, must be adjudicated in a Statement of the Case (SOC), the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.501, 20.502. On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to these matters.   3. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. As noted above, the Veteran’s most recent VA Peripheral Neuropathy examination was in May 2015. However, in August 2015, it was noted that the Veteran received steroid injections for his radiating pain and his gabapentin was increased. Thus, the evidence reflects that his symptoms may have worsened and a remand is required to obtain a new examination to determine the severity of the Veteran’s left lower extremity peripheral neuropathy. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Weggenmann v. Brown, 5 Vet. App. 281 (1993). The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his peripheral neuropathy of the left lower extremity. The examiner must review the claims file. All testing must be completed. The examiner should specifically state the affected nerve(s) and impairment level (e.g., mild, moderate, moderately severe, severe), and describe all symptoms related to left lower extremity peripheral neuropathy.   2. Issue an SOC to the Veteran addressing the matters of an increased rating for right upper extremity peripheral neuropathy, to include whether a reduction from a 10 percent disability rating to a noncompensable rating was proper and an increased rating for right lower extremity peripheral neuropathy, to include whether a reduction from a 10 percent disability rating to a noncompensable rating was proper. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel