Citation Nr: 20022020 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-59 870 DATE: March 30, 2020 ORDER Restoration of the 20 percent rating for right lower extremity sciatic radiculopathy, effective April 1, 2016, is granted. Restoration of the 20 percent rating for left lower extremity sciatic radiculopathy, effective April 1, 2016, is granted. REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity sciatic radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity sciatic radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence of record at the time of the January 2016 rating decision to reduce the ratings assigned for the Veteran’s lower extremity sciatic radiculopathy from 20 percent to 10 percent, did not reflect improvement in the Veteran’s ability to function in the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The reduction in rating from 20 percent to 10 percent for right lower extremity sciatic radiculopathy, effective April 1, 2016, was improper. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.344 (2019). 2. The reduction in rating from 20 percent to 10 percent for left lower extremity sciatic radiculopathy, effective April 1, 2016, was improper. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.344 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from November 1984 to December 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and January 2016 rating decisions issued by the VA Regional Office (RO). The Veteran has contended that the disability ratings assigned for his bilateral lower extremity sciatic radiculopathy should not have been reduced from 20 percent to 10 percent. In resolving those issues, the Board must first address whether VA followed the procedural protections for reductions in evaluations when it reduced the Veteran’s disability rating from 20 percent to 10 percent. In a March 2013 rating decision, the RO granted initial 20 percent ratings for the Veteran’s service-connected right and left lower extremity sciatic radiculopathy, effective September 24, 2012. In April 2015, the RO proposed to reduce the assigned ratings from 20 percent to 10 percent. A rating decision containing all of the information required by 38 C.F.R. § 3.105(e) (2019), which included the proposed reduction in compensation payable and 60-day response period, was sent to the Veteran and his representative in April 2015. In a January 2016 rating decision, the RO reduced the assigned ratings from 20 percent to 10 percent, effective April 1, 2016. Having found that the procedural protections of 38 C.F.R. § 3.105(e) do apply, and have been satisfied, the Board turns to the question of whether the rating reduction for the Veteran’s bilateral lower extremity sciatic radiculopathy was proper. At the time of the January 2016 rating decision, the initial ratings of 20 percent for the Veteran’s service-connected bilateral lower extremity sciatic radiculopathy had not been in effect for more than five years. Where a rating has been in effect for less than five years, “[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.” 38 C.F.R. § 3.344(c). A January 2013 VA examination, upon which the initial 20 percent ratings were originally based, reflected that the Veteran had moderate intermittent pain and paresthesias and/or dysesthesias of the bilateral lower extremities. In reducing the assigned ratings to 10 percent in January 2016, the RO relied primarily on October 2013 and March 2015 VA examination reports for back and peripheral nerves conditions. Specifically, the Veteran had mild intermittent pain and paresthesias and/or dysesthesias of the bilateral lower extremities in October 2013. The examiner noted that the Veteran had the inability to move furniture or lift over 15 to 20 pounds. In March 2015, the Veteran reported severe, radiating pain in both legs, with left greater than right, moderate tingling, and moderately severe numbness. Additionally, his left lower leg/foot sensation was decreased. Both March 2015 VA examiners indicated that the Veteran’s lower extremity sciatic nerves were moderately severe. Further, one examiner stated that the Veteran’s radiculopathy prevented prolonged standing, walking, and bending. Those were the last VA examinations on record prior to the reduction. Hohol v. Derwinski, 2 Vet. App. 169 (1992). Further, the Veteran specifically disagreed with the January 2016 VA examination report on which the reduction was based, asserting that he had severe, near constant, neuralgia of the bilateral lower extremities. He reported that his symptoms had worsened, he could not sit or stand for prolonged periods, and required assistance to go to the bathroom. The Board notes that the Veteran is competent to report his radicular symptoms and his perception of its severity. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that, although the October 2013 VA examination disclosed some improvement in the Veteran’s pain and paresthesias and/or dysesthesias, the October 2013 and March 2015 VA examination reports did not reflect “an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Brown v. Brown, 5 Vet. App. 413, 420-421 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Faust v. West, 13 Vet. App. 342 (2000). Notably, the October and March 2015 VA examiners indicated that there was a functional impact on the Veteran’s ability to work. Further, the March 2015 VA examiners concluded that the Veteran’s bilateral lower extremity sciatic radiculopathy was moderately severe. Additional findings consisted of decreased, left lower leg/foot sensation and functional impact on prolonged standing, walking, and bending. Moreover, the RO reduced the rating without addressing the Veteran’s report of severe, radiating pain. Thus, as compared to the prior January 2013 VA examination findings, the Veteran’s overall disability picture had not improved appreciably. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board concludes that the reduction in rating from 20 percent to 10 percent for the Veteran’s bilateral lower extremity sciatic radiculopathy, effective April 1, 2016, was improper, and the 20 percent ratings are therefore restored REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. The Veteran was last afforded VA examinations for his degenerative arthritis of the lumbar spine and bilateral lower extremity sciatic radiculopathy (“disabilities”) in March 2015. The Veteran has reported that the severity of his service-connected disabilities had increased since that time. Therefore, the Board finds that the Veteran should be provided new VA examinations to determine the current level of severity of all impairment resulting from his disabilities. The issue of entitlement to a TDIU is inextricably intertwined with the service connection claim remanded herein, and it is therefore deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, current treatment records should be identified and obtained before a decision is made with regard to the remaining claims on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected degenerative arthritis of the lumbar spine. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected bilateral lower extremity sciatic radiculopathy. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 4. Confirm that the VA examination reports comport with this remand, and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.