Citation Nr: 20006645 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 16-60 662 DATE: January 29, 2020 ORDER Restoration of the 20 percent rating for left upper extremity ulnar neuropathy, effective October 17, 2015, is granted, subject to regulations governing the payment of monetary benefits. FINDING OF FACT The Regional Office’s (RO’s) decision to reduce the Veteran’s rating for ulnar neuropathy of the left upper extremity does not reflect consideration of whether the noted improvement reflected improvement in the Veteran’s ability to function in the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 20 percent rating for left upper extremity ulnar neuropathy effective October 17, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to September 1982. This matter comes before the Board of Veterans’ Appeals on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) RO. In that decision, the RO reduced the evaluation for service-connected left upper extremity ulnar neuropathy from 20 percent to 10 percent, effective October 17, 2015. The Board notes that the RO found the reduction did not result in a reduction or discontinuance of compensation payments being made at the time of the December 2015 rating decision; therefore, the provisions of 38 C.F.R. § 3.105(e) were not applied. 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; 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. Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993). The provisions of 38 C.F.R. § 3.344 (a) and (b) further provide certain procedural protections to a Veteran in regard to reductions of rating ratings. As noted above, the regulation is applicable if the rating was in effect more than five years; otherwise, 38 C.F.R. § 3.344 (c) is applicable. 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 Brown, supra; Kitchens, 7 Vet. App. 320 (1995). As an initial matter, 38 C.F.R. § 3.344 (a) and (b) are not applicable in this case. The Veteran's 20 percent rating for his left upper extremity ulnar neuropathy was assigned beginning May 11, 2011. Thus, the 20 percent rating was not in effect for greater than 5 years as of October 17, 2015. However, the Board finds that the proper findings for rating reductions were not made in this case. Specifically, the Board notes that under Faust, two findings are necessary in this case in order for the reductions to be proper: (1) that an improvement in the disability has actually occurred; and, (2) that improvement reflects an improvement in the Veteran's ability to function under the ordinary conditions of the Veteran's life and work Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Veteran’s dominant hand is his right. See, e.g., October 2015 Elbow and forearm conditions disability benefits questionnaire (DBQ). Thus, the relevant rating criteria for the left upper extremity are for the minor side. Disability of the ulnar nerve is addressed at Diagnostic Code 8516. Under this provision, complete paralysis of the ulnar nerve, the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened warrants a 50 percent rating in the minor extremity. Incomplete paralysis of the ulnar nerve in the minor extremity is rated as follows: severe (30 percent); moderate (20 percent); and mild (10 percent). 38 C.F.R. § 4.124a, Diagnostic Code 8516. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). In October 2012, the Veteran underwent a VA examination. He was diagnosed with left ulnar neuropathy. The Veteran reported pain and numbness of his left arm. The Veteran had moderate constant pain, moderate paresthesias, and moderate numbness of his left upper extremity. He had a decreased grip of his left hand. A September 2009 image study noted moderate left ulnar neuropathy. An October 2015 DBQ showed that the Veteran was diagnosed with medial epicondylitis of the left upper extremity. The Veteran noted pain in his elbow, as well as numbness and tingling of the ulnar nerve that diminished function of his left hand. The examiner noted that the Veteran experienced flare-ups with increased work activity. Range of motion testing of the left elbow was normal; however, there was objective evidence of pain upon testing. Muscle strength was normal. Mild constant pain, mild intermittent pain, moderate paresthesias, and moderate numbness of the left upper extremity was found. The examiner found that the Veteran had mild incomplete paralysis of his ulnar nerve. The Veteran was noted to have difficulty with heavy lifting at the elbow secondary to pain at the elbow and weakness in the hand. The Veteran was also noted to have difficulty with heavy equipment and fine touch. The December 2015 rating decision noted that the mild incomplete paralysis of the ulnar nerve of the minor extremity warranted a 10 percent rating, and accordingly reduced the disability evaluation assigned the disorder from 20 percent to 10 percent. However, at the time of the reduction, the Board does not find that adequate consideration was given to the issue of whether there was an improvement in the Veteran's ability to function under the ordinary conditions of life and work. More specifically, the action to reduce the ratings did not address the disability at issue in the context of the Veteran's functioning in life and work. Notably, a September 2019 private DBQ diagnosed the Veteran with a chronic lesion of the ulnar nerve. The Veteran reported limited strength and sensation of his left hand and wrist. The Veteran had moderate constant pain, severe paresthesias, and severe numbness of his left upper extremity. He had muscle atrophy of his left hand, left wrist, and left elbow. The physician found that the Veteran had moderate incomplete paralysis of his ulnar nerve and mild incomplete paralysis of his median nerve. Moreover, during his October 2019 Board hearing, the Veteran noted that his service-connected left upper extremity had not improved prior to and since his rating reduction in October 2015, but that it had worsened. He reported an inability to grip objects with his left hand. His left upper extremity was painful and numb. After considering the pertinent medical history, as detailed above, the Board finds that the reduction of the Veteran’s left upper extremity ulnar neuropathy from 20 percent to 10 percent, in the December 2015 rating decision, was not sufficiently supported by the evidentiary record. The Board is unable to adequately assess the propriety of the reduction in this case with respect to the second prong under Faust, namely whether the improvement reflected an improvement in the Veteran's ability to function under ordinary conditions of life and work particularly in light of the Veteran’s Board testimony as well as subsequent medical findings as outlined above which suggest that there was no improvement under the ordinary conditions of life and work at the time of the reduction. Although there appears to have been some improvement in some of the symptoms noted in the 2015 examination when compared to the 2012 examination, the Veteran continued to have difficulty gripping objects, constant pain, and constant numbness and the Veteran in 2015 reported increased symptoms with work activities. This was evidenced by his Board testimony and confirmed by the 2019 examination. Additionally, the symptomatology in the 2019 examination showed that the Veteran continued to have many of the same symptoms as shown in the 2012 examination. The Board finds that there was insufficient basis for finding that any noted improvement reflected improvement in the Veteran’s ability to function in the ordinary conditions of life and work, and thus, the reduction from 20 percent to 10 percent, effective October 17, 2015, is neither supportable nor appropriate under pertinent guidelines. The appeal is therefore granted and restoration of the Veteran’s 20 percent disability rating for his left upper extremity ulnar neuropathy effective October 17, 2015, is warranted. As such, the appeal is granted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.