Citation Nr: 20006937 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-01 139 DATE: January 28, 2020 ORDER The reduction to a noncompensable rating effective March 7, 2013 and 10 percent rating effective October 14, 2015 being improper, restoration of a 20 percent rating for service-connected limitation of flexion of the right forearm, effective February 9, 2010, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for a peripheral nerve condition of the right upper extremity is remanded. Entitlement to an increased rating in excess of 20 percent for limitation of flexion of the right forearm is remanded. Entitlement to a separate rating in excess of 30 percent for impairment of supination and/or pronation of the right forearm is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate is remanded. FINDINGS OF FACT 1. The Veteran’s right arm condition has not improved under the conditions of daily life. 2. Since April 12, 2010, the Veteran had a total rating for PTSD, and the record does not show that his remaining service-connected right arm disability rendered him unemployable. CONCLUSIONS OF LAW 1. The reduction in the Veteran’s disability evaluation from 20 percent for limitation of flexion of the right forearm was improper and the 20 percent rating is restored, effective February 9, 2010. 38 U.S.C. § §§ 1155, 5112 (2012); 38 C.F.R. § §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5206 (2018). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to June 1976. The Veteran appeals June 2012 and January 2015 Rating Decisions (RD) by the Agency of Original Jurisdiction (AOJ). The Board notes the June 2012 RD also denied an increased rating for posttraumatic stress disorder (PTSD). The Veteran also appealed this issue in his August 2012 Notice of Disagreement (NOD). However, the AOJ later granted a 100 percent rating for PTSD in a December 2015 RD. The effective date for this PTSD grant dates to April 12, 2010, the date of the Veteran’s claim for increase via his claim for TDIU. This is a full grant of benefits sought. Thus, this issue is not before the Board. However, this grant does not preclude consideration of TDIU and SMC as discussed below. The Veteran filed his claim for an increased rating for his right arm condition in a December 2010 Veteran Statement. He also filed another claim seeking TDIU in a December VA Form 21-8940. The June 2012 RD denied an increased rating greater than 20 percent for the right arm condition under DC 5206 and denied TDIU. The Veteran then appealed these issues in an August 2012 NOD. In June 2014, the Veteran sought service connection for the peripheral nerve of the right arm. See June 2014 Veteran Statement. Then, a January 2015 RD denied service connection for the peripheral nerve condition. The Veteran appealed this issue in a February 2015 NOD. In December 2015, the AOJ issues another RD that staged the Veteran’s right arm condition rating under DC 5206 to noncompensable from March 7, 2013 and then at 10 percent from October 14, 2015. The AOJ also granted a separate rating under DC 5213 at 30 percent from March 7, 2013. After the December 2015 Statement of the Case (SOC), the Veteran submitted a VA Form 9 in January 2016 only appealing service connection for the peripheral nerve condition. This issue was certified to the Board in January 2016. Then, the Veteran’s representative at the time also submitted a VA Form 9 in February 2016 perfecting an appeal as to all issues in the SOC. This appeal stream was certified to the Board in February 2016. The two appeal streams were then merged. The Veteran did not attend the January 2019 Board hearing and the Veteran has not shown good cause for missing the scheduled Board hearing. The Veteran was notified of the hearing. See December 2018 Correspondence. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2018). The Board also notes the Veteran’s representative was withdrawn as of October 10, 2016. See March 2019 Notification Letter. Rating Reduction As a preliminary matter, the AOJ in the December 2015 RD granted a separate rating for the Veteran’s right arm condition. The AOJ did not change DCs. See Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). However, the AOJ reduced the Veteran’s rating under DC 5206. The Veteran was rated at 20 percent disabling effective February 9, 2010. As noted above, the December 2015 RD reduced and staged the Veteran’s rating to noncompensable and then at 10 percent. Since the Veteran’s overall rating was not reduced in the December 2015 RD, the procedural requirement for rating reductions are not applicable. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). The question turns to the substantive requirement of rating reductions. Though material improvement in the physical 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 Court in Brown v. Brown concluded that “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.” 5 Vet. App. 413, 421 (1993). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Medical and non-medical indicators of improvement may be considered. See Faust v. West, 13 Vet. App. 342, 349 (2000). Having reviewed the evidence of record, the Board finds that restoration of the 20 percent rating for the Veteran’s limitation of flexion of the right forearm, effective February 9, 2010, is warranted. The Veteran is right hand dominate. Under DC 5206 for a major dominate forearm, a noncompensable rating is assigned for limitation of flexion to 110 degrees; a 10 percent rating for limitation of flexion to 100 degrees; a 20 percent rating for limitation of flexion to 90 degrees; a 30 percent rating for limitation of flexion to 70 degrees; a 40 percent rating for limitation of flexion to 55 degrees; and a 50 percent rating for limitation of flexion to 45 degrees. The AOJ based the reduction on the limitation of flexions noted in the March 2013 and October 2015 VA examination reports. The March 2013 VA examiner found limitation of flexion to 105 degrees. The VA examiner also noted the Veteran to have flare-ups that limited strength and the ability to lift items. However, the VA examiner did not elicit information to gauge the Veteran’s limitation of motion during such flare-ups. Given the Veteran had a limitation of flexion of 105 degrees during the examination, it is not implausible that during flare-ups the Veteran’s forearm was further limited by 15 degrees to warrant a 20 percent rating. Furthermore, only months prior to the March 2013 VA examination, the Veteran ordered an elbow support device and had an emergency room visit for his right arm. See October 2012 Packing Slip and August 2012 Treatment Record. Therefore, it is unlikely the Veteran improved from 20 percent to noncompensable levels in such a short amount of time. During the January 2015 VA examination for the nerves, the VA examiner noted severe pain that also caused limitation of motion. This is important given the Veteran’s acknowledgement of painful flare-ups and such severe pain would likely further reduce range of motion (ROM). The October 2015 VA examiner similarly did not properly account for flare-ups. The October 2015 VA examiner found limitation of flexion to 110 degrees and then 95 degrees after repetitive use. However, the October 2015 VA examiner seemed to assume the current ROM during the examination “may be suggestive of the ROM to be experience during flare ups” without eliciting ROM information from the Veteran during such flare-ups. As such, it is not implausible that during flare-ups the Veteran’s forearm was further limited by 5 degrees to warrant a 20 percent rating. Therefore, the Board finds the Veteran had such symptoms warranting at least a 20 percent rating throughout the pendency of the claim. Accordingly, the Board finds that the Veteran’s ability to function under the ordinary conditions of life and work has not improved. The Veteran’s symptoms remained present at 20 percent levels during the entire period at issue. The Veteran continued to experience right forearm symptoms that warranted at least a 20 percent rating. As noted above, in reduction cases, the burden of proof lies with VA to show that the Veteran’s disability has undergone an observable improvement. To be precise, the burden is on VA to establish by a preponderance of evidence that the rating reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). The Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his right forearm condition was therefore improper. The 20 percent rating is therefore restored. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2018). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). A grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280.  Here, the Veteran is in receipt of a 100 percent rating for his PTSD since April 12, 2010. The period on appeal dates back to the Veteran’s claim for an increased rating for his right arm condition in December 2010. As such, the Veteran has had a 100 percent rating for PTSD for the entire period on appeal. The Veteran is only service connected for his PTSD and right arm condition. The record does not establish, and the Veteran does not contend, the right arm condition alone warrants a finding of TDIU. See, e.g., November 2015 VA Form 21-8940. As a result, there is no evidence that the Veteran’s service-connected disabilities, aside from the service-connected PTSD, prevented the Veteran from securing or following a substantially gainful occupation. Accordingly, the Board finds that a TDIU is not warranted as the Veteran was not rendered unemployable by his service connected right arm disability (without consideration of PTSD). REASONS FOR REMAND 1. Peripheral Nerve Condition The January 2015 VA examiner found the Veteran’s peripheral nerve damage is less likely than not related to service. However, the Veteran is service connected for a right forearm condition. Therefore, service connection on a secondary basis should be considered. Such a secondary opinion has yet to be rendered. As such, an additional opinion is required that addresses causation and aggravation on a secondary basis. 2. Right Forearm Condition As alluded to in the rating reduction section above, the March 2013 and October 2015 VA examinations do not adequately address flare-ups. The VA examiners did not elicit enough information from the Veteran regarding limitation of motion and where pain begins during flare-ups. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2018). As such, the VA examinations are inadequate for rating purposes and a new examination is required. 3. SMC The Veteran has a 100 percent rating for PTSD. Given the other issues being remanded, the Veteran may be entitled to SMC at the housebound rate upon final adjudication of all the issues. Since SMC is premised in part on the severity of the Veteran’s service-connected right forearm condition, the issue of SMC is inextricably intertwined with those issues also being remanded. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Obtain an opinion from a qualified reviewing clinician to determine the nature and etiology of the Veteran’s peripheral nerve condition. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s peripheral nerve condition was CAUSED by his service-connected right forearm condition? Is it at least as likely as not that the Veteran’s peripheral nerve condition was AGGRAVATED by his service-connected right forearm condition? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Schedule the Veteran for an examination of the current severity of his right forearm condition. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.