Citation Nr: 20034065 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 17-42 182 DATE: May 15, 2020 ORDER As the reduction of the disability rating for supination and pronation, impairment of the left arm, from 20 to 10 percent, effective April 1, 2016, was proper, restoration of the 20 percent rating from that date is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The reduction of the rating for supination and pronation, impairment of the left arm, from 20 to 10 percent, was supported by the evidence of record at the time of the reduction. CONCLUSION OF LAW Reduction of the disability rating for supination and pronation, impairment of the left arm, from 20 to 10 percent, effective April 1, 2016, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 5213. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1976 to June 1990. These matters come to the Board of Veterans’ Appeals (Board) on appeal from July 2016 and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, while the current appeal was pending, the RO assigned a 20 percent disability rating for supination and pronation, impairment of the left arm, effective October 2, 2017. In February 2020, the Board mailed the Veteran a letter advising him that his previous Rapid Appeals Modernization Program (RAMP) opt-in had not yet been processed and that the issues on appeal were currently pending at the Board in the old (legacy) review system. The February 2020 letter asked the Veteran if he still wished to participate in RAMP. The letter requested the Veteran to respond within 60 days; otherwise, the Board would assume that he would like his appeal to remain on the Board’s docket in the legacy appeals system. To date, no response has been received. Therefore, his appeal continues to be processed according to legacy procedures. The Board notes that the agency of original jurisdiction (AOJ) furnished the Veteran a supplemental statement of the case (SSOC) relative to the matter herein decided in January 2019. Although additional VA-generated evidence has been added to the record since that time, none of it bears meaningfully on the outcome of that issue. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). The issue of Veteran’s entitlement to a higher rating for median and ulnar neuropathy of the left arm and hand has been perfected, but not yet certified to the Board. The absence of certification, while not jurisdictional, suggests that the AOJ may still be taking action on that issue. See, e.g., 38 C.F.R. § 19.36. As such, the Board will not accept jurisdiction over it at this time. It will be the subject of a subsequent Board decision, if otherwise in order. Restoration of a 20 percent rating for supination and pronation, impairment of the left arm, effective April 1, 2016. The Veteran seeks restoration of a 20 percent rating for supination and pronation, impairment of the left arm, from April 1, 2016. Historically, a September 2014 rating decision established service connection and a 20 percent rating for supination and pronation of the left arm, effective May 21, 2014. In a July 2016 rating decision, which followed an April 2016 VA examination, the RO reduced the rating to 10 percent, effective April 1, 2016. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction of the evaluation for a service-connected disability when considered warranted by the evidence, but generally only after following certain procedures. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the veteran’s condition). Specifically, where a reduction in the evaluation of a service-connected disability or employability status is considered warranted, and the reduction would result in the reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her last address of record of the action contemplated, and furnished detailed reasons therefor, and will be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). However, those procedures do not apply if the rating reduction will not reduce the veteran’s net compensation. See VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with 60 days’ notice before making a rating decision effective if the decision did not reduce the overall compensation paid to the Veteran). The July 2016 rating decision that reduced the Veteran’s rating for supination and pronation, impairment of the left arm, also increased the rating for left elbow osteochondroma, status post hardware removal, from 10 to 20 percent, and granted service connection and a 30 percent rating for median and ulnar neuropathy of the left arm and hand, effective December 23, 2015. The net effect of those actions was to increase the Veteran’s prior combined 30 percent rating to 60 percent, effective December 23, 2015. Accordingly, the rating decision did not reduce the Veteran’s total compensation. Consequently, the RO was not required to follow the notice procedures prescribed under 38 C.F.R. § 3.105(e). Having decided that the RO did not need to follow the 38 C.F.R. § 3.105(e) process to reduce the Veteran’s rating, the next question to be addressed is whether, given the available evidence, a reduction was warranted. In this regard, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. Where a rating has been in effect for less than five years, an adequate reexamination that discloses improvement in the condition will warrant reduction in the rating. See 38 C.F.R. §§ 3.343(a), 3.344(a) and (c). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown v. Brown, 5 Vet. App. 413, 421. Not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects an improvement in the ability to function under the ordinary conditions of life and work. Id. The Board finds that the provisions of 38 C.F.R. § 3.344 are inapplicable. That regulation, by its terms, applies only to ratings which have continued for long periods at the same level (five years or more). 38 C.F.R. § 3.344(c). Because the 20 percent rating for the Veteran’s left arm impairment was in effect for less than five years, the provisions of 38 C.F.R. § 3.344 do not apply. In general, the reduction of a rating must have been supported by the evidence of record at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992). Under Diagnostic Code 5213, a 10 percent rating is warranted where supination of the minor (non-dominant) extremity is limited to 30 degrees or less. A 20 percent rating is warranted where pronation of the non-dominant extremity is lost beyond the last quarter of the arc and the hand does not approach full pronation; where motion is lost beyond the middle of the arc; or where there is fusion with the hand fixed in full pronation or near the middle of the arc or moderate pronation. A 30 percent rating is warranted where there is fusion in the non-dominant extremity with the hand fixed in supination or hyperpronation. An August 2014 VA examination report shows that the Veteran was diagnosed with left elbow osteochondroma. The Veteran reported chronic pain of the left elbow, increased with movement, lifting, and repetitive activity. On examination, he demonstrated supination to 70 degrees, with pain and 50 degrees, and pronation to 60 degrees, with pain at 40 degrees. The examiner noted less movement than normal, weakened movement, and pain on movement contributing to the disability. The examiner noted that the Veteran’s disability did not impact his ability to work as he was currently able to work. In April 2016, the Veteran was afforded a VA examination. He reported continued pain with use of the left elbow and limited range of motion. He further reported that night pain awakened him. On examination, the Veteran demonstrated supination from 0 to 10 degrees and pronation from 0 to 90 degrees, with no pain noted on pronation. The examiner noted that the Veteran could not extend his left arm. Repetitive use testing resulted in no additional limitation of motion. The examiner also indicated that the examination was medically consistent with the Veteran’s reported functional loss during flare-ups. The examiner noted that the Veteran was still able to work as a mechanic, but needed a helper. In his August 2016 notice of disagreement and August 2017 substantive appeal to the Board (VA Form 9), the Veteran indicated that he continued to have functional difficulty related to the left arm. He asserted that his left arm impairment rating should not have been reduced. The Board finds that the preponderance of the evidence demonstrates that the Veteran’s rating for supination and pronation was properly reduced to 10 percent. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. When compared to the previous August 2014 VA examination, upon which the prior 20 percent disability rating was based, the April 2016 VA examination report reflected improvement in pronation. 38 C.F.R. § 4.71a, Diagnostic Code 5213. Even factoring in the Veteran’s subjective complaints of pain, there was no medical evidence of pronation lost beyond the last quarter of arc, as required for a 20 percent rating at the time of the reduction. Id. For all of the foregoing reasons, the Board concludes that the reduction in evaluation from 20 percent to 10 percent was appropriate. 38 C.F.R. § 4.71a, Diagnostic Code 5213. The appeal of this issue is denied. REASONS FOR REMAND Entitlement to a TDIU is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s TDIU claim and to afford him every possible consideration. The Veteran’s employment status is unclear. Specifically, he indicated in that he left his last job in 2016 due to his service-connected left arm disabilities. See, e.g., November 2016 VA 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); August 2017 VA Form 9. However, recent VA treatment records indicate that he was still doing “some work on the side.” See December 2019 VA treatment record. An August 2019 VA treatment record reflects that the Veteran worked midday doing lawnmowing. As such, it is unclear whether the Veteran is currently working, and if so, whether that work constitutes gainful employment. Under 38 C.F.R. § 4.16, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (this includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. On remand, the AOJ should undertake additional development of the Veteran’s claim to determine the dates he has worked and the income he has generated during each year of the pertinent period on appeal. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Undertake additional development to determine the dates the Veteran has worked and the income he has generated during each year of the pertinent period on appeal. As part of that development, ask the Veteran to complete and return an updated VA Form 21-8940. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be re-adjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a   supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.