Citation Nr: 19136201 Decision Date: 05/09/19 Archive Date: 05/09/19 DOCKET NO. 18-33 076 DATE: May 9, 2019 ORDER Reduction to a 10 percent rating for service-connected lumbar strain with intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD) was improper; restoration of the 40 percent rating is granted. Reduction to a 10 percent rating for service-connected sciatica of the left lower extremity was improper; restoration of the 40 percent rating is granted. Reduction to a 10 percent rating for service-connected sciatica of the right lower extremity was improper; restoration of the 20 percent rating is granted. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. The Veteran was granted service connection for lumbar strain with IVDS and DDD in a January 2014 rating decision and a 20 percent evaluation was assigned, effective February 11, 2013; service connection was also granted for sciatica of the left and right lower extremity with a 20 percent evaluation assigned to the left lower extremity and a 10 percent evaluation assigned to the right lower extremity, effective February 11, 2013. 2. A May 2015 rating decision increased the assigned rating for the service-connected lumbar spine disability to 40 percent, effective June 30, 2014; the assigned rating for sciatica of the left lower extremity was increased to 40 percent, effective June 30, 2014 and the assigned rating for sciatica of the right lower extremity was increased to 20 percent, effective June 30, 2014. 3. In an October 2017 rating decision, the RO reduced the rating for service-connected lumbar strain with IVDS and DDD to 10 percent, effective August 29, 2017; the ratings for sciatica of the left and right lower extremities were also reduced to 10 percent each, effective August 29, 2017. 4. The record then available did not reflect that there had been improvement in the service-connected lumbar spine disability as well as sciatica of the left and right lower extremities under the ordinary conditions of life and work. 5. In a May 2015 rating decision, the RO denied the Veteran’s claim to reopen the matter of entitlement to service connection for bilateral pes planus. She did not appeal that decision, and new and material evidence was not received within one year of its issuance. 6. Additional evidence received since the May 2015 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim of service connection for bilateral pes planus. CONCLUSIONS OF LAW 1. Restoration of a 40 percent disability rating for the Veteran’s service-connected lumbar strain with IVDS and DDD is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code 5243. 2. Restoration of a 40 percent disability rating for the Veteran’s service-connected sciatica of the left lower extremity is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code 8520. 3. Restoration of a 20 percent disability rating for the Veteran’s service-connected sciatica of the right lower extremity is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.71a, Diagnostic Code 8520. 4. The May 2015 rating decision denying the claim to reopen the matter of entitlement to service connection for bilateral pes planus is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. New and material evidence has not been received to warrant reopening of the claim of service connection for bilateral pes planus. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to November 1980 and from April 1981 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the April 2019 Appellant’s Brief, the Veteran’s representative asserted a claim of entitlement to special monthly compensation at the rate specified in 38 U.S.C. § 1114(s). As this new claim has not yet been addressed by the RO, the Board is without authority to consider it. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of issues not yet adjudicated by the RO). Moreover, the Board notes that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Accordingly, if the Veteran intends to pursue this claim, it should be filed with the RO on the proper form. 1. The propriety of a reduction for service-connected lumbar strain with IVDS and DDD from 40 percent to 10 percent from August 29, 2017. 2. The propriety of a reduction for service-connected sciatica of the left lower extremity from 40 percent to 10 percent from August 29, 2017. 3. The propriety of a reduction for service-connected sciatica of the right lower extremity from 20 percent to 10 percent from August 29, 2017. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. These are such important safeguards that the U.S. Court of Appeals for Veterans Claims (Court) has held that where VA has reduced a veteran’s rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, such as epilepsy, asthma, ulcers, and many skin diseases, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental 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 above considerations are required for ratings which have continued for long periods at the same level, i.e. five years or more. 38 C.F.R. § 3.344(c). Prior to reducing a veteran’s disability rating, however, VA is required to “comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. § 4.1, 4.2, 4.10. These general provisions “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 evaluating whether the conditions had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Here, the Veteran contends that the reduction from 40 percent to 10 percent for her service-connected lumbar strain with IVDS and DDD was not warranted. She additionally disagrees with the reduction from 40 percent to 10 percent rating for her service-connected sciatica of the left lower extremity and the reduction from 20 percent to 10 percent rating for her sciatica of the right lower extremity. She argues that the evaluations should be restored. See, e.g., the notice of disagreement (NOD) dated November 2017. As an initial matter, the Board finds that the evidence does not indicate, and the Veteran does not contend, that the relevant notice requirements in effectuating the reductions have not been met in this case. As properly pointed out by the RO in the October 2017 rating decision, the procedural requirements set forth in 38 C.F.R. § 3.105(e) regarding reduction in benefits (i.e. the issuance of a rating decision proposing the reduction or discontinuance and setting out all material facts and reasons underlying the proposal; notification to the Veteran; and providing the Veteran 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level) do not apply in this case as its reduction did not affect her overall combined evaluation or monthly monetary amount. See 38 C.F.R. § 3.105(e). The question that remains is the substantive question of whether the reductions were proper. In essence, as explained above, the law requires that the service-connected disabilities must have demonstrated improvement in order for the assigned ratings to be reduced. 38 C.F.R. § 4.13. The Veteran was granted service connection for lumbar strain with IVDS and DDD in a January 2014 rating decision and a 20 percent evaluation was assigned, effective February 11, 2013; service connection was also granted for sciatica of the left and right lower extremity with a 20 percent evaluation assigned to the left lower extremity and a 10 percent evaluation assigned to the right lower extremity, effective February 11, 2013. A May 2015 rating decision increased the assigned rating for the service-connected lumbar spine disability to 40 percent, effective June 30, 2014; the assigned rating for sciatica of the left lower extremity was increased to 40 percent, effective June 30, 2014 and the assigned rating for sciatica of the right lower extremity was increased to 20 percent, effective June 30, 2014. In an October 2017 rating decision, the RO reduced the rating for service-connected lumbar strain with IVDS and DDD to 10 percent, effective August 29, 2017; the ratings for sciatica of the left and right lower extremities were also reduced to 10 percent each, effective August 29, 2017. As the 40 percent rating for lumbar strain with IVDS and DDD, 40 percent rating for sciatica of the left lower extremity, and 20 percent rating for sciatica of the right lower extremity were not in effect for five years or more, the provisions of 38 C.F.R. § 3.344 do not apply. VA treatment records dated in November 2016 documented the Veteran’s treatment for chronic low back pain with radiation to the lower extremities. It was noted that the Veteran uses baclofen for muscle spasm in her low back. See the VA treatment record dated November 2016. VA treatment records dated in June 2017 noted the Veteran’s slow ambulation due to her back pain. In August 2017, the Veteran was afforded a VA examination to address her lumbar spine symptomatology. The examiner noted the Veteran’s report of chronic back pain with pain that is so intense (10/10 in severity), she is unable to sleep on her left side. The Veteran described sharp, steady pain at 7/10 in severity in her lower back that radiates down the back of her knees and into her bilateral feet. She reported flare-ups of lumbar spine pain with resulting occasional falls. She described these flare-ups as daily. With respect to daily functional impairment, the Veteran stated that she is unable to get into or out of the bathtub due to pain and stiffness. The following range of motion measurements were documented: forward flexion to 80 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that there was pain throughout the ranges of motion, however it did not result in functional loss. The examiner additionally reported that there was no objective evidence of localized tenderness or pain to palpation. The examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or during a period of flare-up. The examiner stated, “[t]here is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” The examiner declined to estimate loss of range of motion during flare-ups in terms of degrees. The examiner reported that there was no evidence of guarding or muscle spasms. The examiner noted the Veteran’s occasional use of a brace and a TENs unit. The examiner opined that the Veteran’s lumbar spine disability has no impact on her ability to work. The Veteran was also afforded an August 2017 VA examination as to her diagnosed sciatica of the right and left lower extremities. The examiner noted the Veteran’s report of numbness and tingling in the bilateral lower extremities. The Veteran described mild constant pain, mild intermittent pain, and mild numbness, bilaterally. She also reported mild bilateral paresthesias and/or dysesthesias. Muscle strength was normal and deep tendon reflexes were intact. Sensory examination showed a decrease in sensation at the right and left lower legs/ankles as well as in the bilateral feet/toes. There were no trophic changes. Normal gait was observed. The examiner diagnosed the Veteran with mild incomplete paralysis of the right and left lower radicular group and sciatic nerve. The examiner indicated that the Veteran’s bilateral sciatica of the lower extremities has no impact on her ability to work. The findings of the August 2017 VA examiner formed the basis of the RO’s decision to reduce the Veteran’s disability rating from 40 percent to 10 percent for the lumbar spine disability, 40 percent to 10 percent for sciatica of the left lower extremity and 20 percent to 10 percent for sciatica of the right lower extremity. However, the August 2017 VA examination reports did not specifically address whether the Veteran’s lumbar spine and sciatica symptomatology had improved since her prior VA examinations in April 2015, which documented significantly more severe lumbar spine and sciatica symptoms, particularly in the Veteran’s ability to function under the ordinary conditions of life and work. Moreover, the VA examiner failed to address symptomatology associated with the Veteran’s identified flare-ups, did not explain her findings of no functional loss/impairment in spite of the Veteran’s contentions to the contrary, and failed to adequately describe the impact of the lumbar spine and sciatica disabilities on the Veteran’s ability to work. The examiner also did not address the functional impact of the Veteran’s muscle spasms of her lumbar spine, which was clearly documented in her VA treatment records. As indicated above, pursuant to the Court’s holdings in Faust and Brown, 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 a veteran’s ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 350; see also Brown, 5 Vet. App. at 421. Although the August 2017 examination findings showed improvement in the Veteran’s range of motion of the lumbar spine, the examiner did not fully contemplate all functional losses experienced by the Veteran, particularly those caused by episodes of flare-ups with pain and stiffness, as well as the functional impact of the lumbar spine and sciatica disabilities to include on her ability to work. As such, the Board cannot conclude that there had been improvement over the disabilities characterized by the previously assigned ratings particularly in the Veteran’s ability to function under the ordinary conditions of life and work. Consequently, the Board concludes that the record did not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The previously assigned 40 percent rating for the service-connected lumbar strain with IVDS and DDD is therefore restored. The previously assigned 40 percent rating for sciatica of the left lower extremity and 20 percent rating for sciatica of the right lower extremity are also restored. The appeal is allowed to that extent. See 38 C.F.R. § 3.344. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral pes planus. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In an April 2010 decision, the RO denied the Veteran’s original claim of entitlement to service connection for bilateral pes planus. The Veteran did not appeal the decision. As new and material evidence was not received within one year of the decision, it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In the April 2019 Appellant’s Brief, the Veteran’s representative asserted that the April 2010 rating decision was not final because the denial of service connection for bilateral pes planus relied upon an inadequate October 2009 VA examination report. Significantly, the Veteran’s representative did not specifically assert that there was clear and unmistakable error (CUE) in the April 2010 rating decision. Regardless, the assertions of the Veteran’s representative as to the inadequacy of the October 2009 VA examination report is essentially an allegation that VA failed to fulfill the duty to assist. The argument amounts to an allegation that the examination was inadequate and VA erred in failing to obtain an adequate examination. A failure to fulfill the duty to assist cannot, as a matter of law, constitute CUE. 38 C.F.R. § 20.1403(d)(2); Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002). This aspect of the Veteran’s argument is without merit. The Veteran’s claim to reopen the matter of entitlement to service connection for bilateral pes planus was most recently denied in a May 2015 rating decision. The Veteran did not appeal the denial and new and material evidence was not received within one year. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond, supra. Under these circumstances, the RO’s May 2015 decision is final, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran now seeks to reopen her claim. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final decision in May 2015. After reviewing the record, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156 has not been received to warrant reopening of the claim of service connection for bilateral pes planus. The evidence associated with the Veteran’s claims file at the time of the last final denial in May 2015 included service treatment records (STRs), an October 2009 VA examination report, VA treatment records, and the statements of the Veteran. At the time of the last final denial, the Veteran contended that her bilateral pes planus disability was incurred in her active duty service. See the Veteran’s claims dated January 2009 and October 2013. To this end, the evidence shows that she served on active duty from November 1977 to November 1980 and from April 1981 to May 1989. The Veteran’s June 1977 enlistment examination documented mild pes planus. A September 1980 Report of Medical History noted the Veteran’s report of ‘foot trouble;’ she indicated that when she was 16 years-old she had to have her “feet broke[n] because of arches or something.” In a May 1981 Report of Medical History, the Veteran again endorsed ‘foot trouble.’ A January 1984 STR noted the Veteran’s report of painful arches of both feet, with a duration of one year. A March 1984 STR documented a diagnosis of mild flat feet with associated symptoms. VA treatment records dated July 2008 to February 2009 documented the Veteran’s report of bilateral foot pain. An October 2009 VA examination report noted the Veteran’s report that her arches fell during basic training. She indicated that she did not have foot problems prior to service. The examiner indicated, “[a]fter reviewing the medical records which were an office visit to a podiatrist on March 27, 1984, the patient was diagnosed with asymptomatic pes planus, she essentially had bilateral flexible pes planus at that time. There was no objective evidence of pathology at that point.” The examiner noted that the Veteran did report subjective complaints of burning sensation along the anterior ankles and feet when wearing boots or shoes. The examiner opined that the Veteran’s “bilateral asymptomatic pes planus condition is less likely as not caused by or a result of her military service. It is unlikely due to the fact that she has had minimal to no treatment following that visit, she is asymptomatic at this point and has a very flexible foot.” The examiner further stated, “[t]here is no evidence of progression of disease with posterior tibial tendon involvement, or very minor at best.” As described above, the Veteran’s original claim of entitlement to service connection for a bilateral pes planus was denied in an April 2010 rating decision, which determined that there was no evidence of record linking the Veteran’s current bilateral pes planus disability to her military service. The Veteran filed a claim to reopen in October 2013, which was denied in January 2014. VA treatment records dated in December 2014 documented a diagnosis of bilateral pes planus and plantar fasciitis. A May 2015 rating decision confirmed and continued the previous denial of service connection for bilateral pes planus. This appeal follows. After a review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence to reopen the claim of entitlement to service connection for bilateral pes planus has not been received. The evidence associated with the claims file subsequent to the prior final decision in May 2015 includes the Veteran’s VA treatment records, as well as statements of the Veteran. Medical evidence has been added to the record indicating that the Veteran continues to suffer from bilateral pes planus with plantar fasciitis. This clinical evidence is therefore cumulative of evidence previously of record and considered at the time of the prior denial. Similarly, the Veteran’s assertions concerning the incurrence, etiology, and continuing symptomatology concerning her claimed bilateral pes planus, although new, are essentially cumulative of evidence already of record. The Board has considered the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010). In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a veteran’s testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus. In reaching this conclusion, the Court reaffirmed the notion that a veteran’s testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it. Id; see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, as indicated above, in the current appeal the Veteran has not provided evidence in support of nexus/aggravation between the diagnosed bilateral pes plans and her military service, which was not previously considered in prior decision. Accordingly, her contentions made during the current appeal are cumulative and may not be deemed to be both new and material. Shade, supra. (Continued on the next page)   As the additionally received evidence does not tend to establish any point not previously demonstrated, it is cumulative. See 38 C.F.R. § 3.156. The Board must therefore conclude that new and material evidence has not been received and that the Veteran’s claim for service connection for bilateral pes planus is not reopened. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.