Citation Nr: 19165704 Decision Date: 08/23/19 Archive Date: 08/23/19 DOCKET NO. 10-03 567 DATE: August 23, 2019 ORDER Restoration of a 10 percent disability rating for the service-connected left tibia stress fracture disability, from October 1, 2010, is granted. Entitlement to a 10 percent rating based upon multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 as a matter of law is denied. Service connection for right convex scoliosis, having been withdrawn, is dismissed. Service connection for right hip disorder, having been withdrawn, is dismissed. Service connection for left hip disorder, having been withdrawn, is dismissed. Service connection for right leg disorder, having been withdrawn, is dismissed. Service connection for left leg disorder, having been withdrawn, is dismissed. Service connection for bilateral pes planus disorder, having been withdrawn, is dismissed. Service connection for stress fracture in the right tibia, having been withdrawn, is dismissed. FINDINGS OF FACT 1. In a July 2010 rating decision, the RO implemented a reduction of the 10 percent disability rating for the left tibia disability, which was in effect for more than five years, to 0 percent disabling, effective October 1, 2010 (the first day of the third month following notice of the reduction), on the basis that the left tibia stress fracture disability did not manifest in malunion of the left tibia with slight knee or ankle disability. 2. The July 2010 rating decision reduced the overall level of compensation and, as a result, the Veteran was notified of the reduction and was given the 60 days to submit additional evidence to the record. 3. The July 2010 rating decision reduced the overall level of compensation and the 10 percent disability rating for the left tibia disability was in effect for more than five years. 4. The evidence of record does not show sustained material improvement in the service-connected left tibia stress fracture disability. 5. When the 10 percent rating for left tibia disability is implemented, the Veteran will have had a compensable disability rating. 6. Per the Veteran’s testimony at the February 2019 Travel Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the claim for service connection for right convex scoliosis. 7. Per the Veteran’s testimony at the February 2019 Travel Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the claim for service connection for right hip disorder. 8. Per the Veteran’s testimony at the February 2019 Travel Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the claim for service connection for left hip disorder. 9. Per the Veteran’s testimony at the February 2019 Travel Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the claim for service connection for right leg disorder. 10. Per the Veteran’s testimony at the February 2019 Travel Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the claim for service connection for left leg disorder. 11. Per the Veteran’s testimony at the February 2019 Travel Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the claim for service connection for bilateral pes planus disorder. 12. Per the Veteran’s testimony at the February 2019 Travel Board hearing, prior to the promulgation of a Board decision in the present appeal, the Veteran asked to withdraw the claim for service connection for stress fracture in the right tibia. CONCLUSIONS OF LAW 1. The criteria for restoration of a 10 percent rating for the service-connected left tibia stress fracture disability from October 1, 2010 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.159, 3.344, 4.1, 4.2, 4.3, 4.10, 4.40, 4.44, 4.59, 4.71a, Diagnostic Code 5299-5262. 2. The criteria for a 10 percent rating based on multiple noncompensable service-connected disabilities have not been met as a matter of law. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. 3. The criteria for the withdrawal of the claim for service connection for right convex scoliosis have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.204. 4. The criteria for the withdrawal of the claim for service connection for right hip disorder have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.204. 5. The criteria for the withdrawal of the claim for service connection left hip disorder for have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.204. 6. The criteria for the withdrawal of the claim for service connection for right leg disorder have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.204. 7. The criteria for the withdrawal of the claim for service connection for left leg disorder have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.204. 8. The criteria for the withdrawal of the claim for service connection for bilateral pes planus disorder have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.204. 9. The criteria for the withdrawal of the claim for service connection for stress fracture in the right tibia have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to January 2000. This matter is on appeal from a February 2009 rating decision issued by the Regional Office (RO) in Nashville, Tennessee. The Veteran testified in Nashville, Tennessee, at a Travel Board hearing in February 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. The Board finds that the duties to notify and assist the Veteran in this case have been rendered moot. The grant of restoration to 10 percent for the service-connected left tibia disability is a full grant of the benefits sought on appeal and the resolution of entitlement to a 10 percent rating based upon multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is a legal denial based on undisputed facts. As such, no further notice or development under the VCAA is warranted with respect to these issues. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also VAOPGCPREC 5-2004. 1. Restoration of a 10 Percent Disability Rating for the Service-Connected Left Tibia Stress Fracture Disability Service connection and a 10 percent disability rating for the left tibia disability based on symptoms have been in effect since January 28, 2000. In February 2009, VA proposed to reduce the rating to 0 percent, and notified the Veteran of the proposed reduction. In a July 2010 rating decision, the RO implemented a reduction to 0 percent disabling for the left tibia disability, to become effective October 1, 2010. The Board finds that the RO complied with the procedural safeguards regarding the notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. At the time the reduction became effective, October 1, 2010, the 10 percent rating for the left tibia disability has been continuously in effect for more than five years. A rating reduction is not proper unless a veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). 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). See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). A veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, the left tibia disability was rated under the criteria found in 38 C.F.R. § 4.71a, Diagnostic Code 5262. The question of whether a disability has improved involves consideration of the applicable rating criteria. Under 38 C.F.R. § 4.71a, DC 5262, a tibia impairment is assigned a 40 percent disability rating when tibia impairment manifests in nonunion of, with loose motion, requiring a brace. A 30 percent disability rating is assigned when malunion is manifested with marked knee or ankle disability. A 20 percent disability rating is assigned when malunion is manifested with moderate knee or ankle disability. A 10 percent disability rating is assigned when malunion is manifested with slight knee or ankle disability. In this case, the Board finds that the evidence is in equipoise as to whether there was sustained improvement of the left tibia disability has been demonstrated; therefore, the rating reduction was not proper, and the criteria for restoration of a 10 percent rating for the left tibia disability, effective October 1, 2010, have been met. At the February 2019 Travel Board hearing, the Veteran credibly testified that the left tibia disability did not improve prior to October 1, 2010. The Veteran reported that the left tibia manifested in symptoms of constant pain and limitation of motion. The Veteran explained that he has difficulty driving a car (using the accelerator), walking, and running. These symptoms affect the Veteran on a daily basis, specifically affecting the ability to work at the Post Office. Post-service VA treatment records indicate that the Veteran was treated for left tibia symptoms and signs on multiple occasions. See August 2011 VA Treatment Records (reporting tibia tenderness on palpation); October 2012 VA Treatment Records (requesting an MRI due to persistent tibia pain); May 2014 VA Treatment Records (seeking treatment for pain in both shins); May 2015 VA Treatment Records (reporting sharp pain in both legs that interfere with sleep); October 2015 VA Treatment Records (taking medication to manage pain in the left tibia). Considering the additional functional loss due to painful motion, (see 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995)), at the time of the reduction in July 2010, the weight of the evidence does not show a material sustained improvement in the left tibia disability that is reasonably certain to be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 413. Accordingly, the 10 percent rating for the left tibia disability will be restored from October 1, 2010. 2. Entitlement to a 10 Percent Rating Based Upon Multiple Noncompensable Service-Connected Disabilities Under 38 C.F.R. § 3.324 A veteran with two or more separate, permanent, service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Rating Schedule, shall be awarded a 10 percent rating, but not in combination with any other rating. See 38 C.F.R. § 3.324. Pursuant to this Board decision, a compensable rating has been assigned for the service-connected left tibia stress fracture disability. Accordingly, as there will be at least a 10 percent (compensable) rating in effect for the entire rating period, the provisions of 38 C.F.R. § 3.324 cannot be met as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, as a matter of law, a 10 percent rating under 38 C.F.R. § 3.324 must be denied. 3. Service Connection for Right Convex Scoliosis 4. Service Connection for Right Hip Disorder 5. Service Connection for Left Hip Disorder 6. Service Connection for Right Leg Disorder 7. Service Connection for Left Leg Disorder 8. Service Connection for Bilateral Pes Planus Disorder 9. Service Connection for Stress Fracture in the Right Tibia Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. Per the Veteran’s testimony at the February 2019 Travel Board hearing, the Veteran asked to withdraw the following service connection claims: right convex scoliosis, right hip disorder, left hip disorder, right leg disorder, left leg disorder, bilateral pes planus disorder, and stress fracture in the right tibia. As the Veteran has withdrawn the above-listed issues on appeal, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the service connection claims for right convex scoliosis, right hip disorder, left hip disorder, right leg disorder, left leg disorder, bilateral pes planus disorder, and stress fracture in the right tibia must be dismissed. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Danielle Costantino, Associate 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.