Citation Nr: 20041024 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 17-09 397 DATE: June 16, 2020 ORDER The reduction of the 40 percent evaluation for degenerative spondylosis of the lumbar spine to 20 percent effective April 1, 2016 was not proper, and the 40 percent evaluation is restored as of that date. The reduction of the 20 percent evaluation for right lower extremity radiculopathy to 10 percent effective April 1, 2016 was not proper, and the 20 percent evaluation is restored as of that date. The reduction of the 20 percent evaluation for left lower extremity radiculopathy to 10 percent effective April 1, 2016 was not proper, and the 20 percent evaluation is restored as of that date. Entitlement to an evaluation in excess of 20 percent for cervical spine osteoarthritis is dismissed. Entitlement to an evaluation in excess of 10 percent for a right knee strain is dismissed. Entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy is dismissed. Whether new and material evidence has been received to reopen the claim for service connection for a bilateral foot disability is dismissed. Whether new and material evidence has been submitted to reopen the claim for service connection for headaches is dismissed. Whether new and material evidence has been received to reopen the claim of service connection for hypertension is dismissed. Whether new and material evidence has been received to reopen the claim of service connection for a left shoulder disability is dismissed. Whether new and material evidence has been received to reopen the claim of service connection for ventricular depolarization is dismissed. Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss is dismissed. Entitlement to service connection for carpal tunnel syndrome is dismissed. Entitlement to service connection for diabetes mellitus is dismissed. Entitlement to specially adapted housing is dismissed. Entitlement to a special home adaptation grant is dismissed. FINDINGS OF FACT 1. At the time of the April 2016 reduction in the rating for degenerative spondylosis of the lumbar spine and right and left lower extremity radiculopathy, the respective evaluations had been in effect since March 2012, which was less than five years. 2. The record does not demonstrate that there was sustained material improvement in the symptoms attributable to degenerative spondylosis of the lumbar spine. 3. The record does not demonstrate that there was sustained material improvement in the symptoms attributable to right and left lower extremity radiculopathy. 4. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim for an evaluation in excess of 20 percent for cervical spine osteoarthritis be withdrawn from appellate review. 5. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim for an evaluation in excess of 10 percent for a right knee strain be withdrawn from appellate review. 6. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim for an evaluation in excess of 20 percent for right upper extremity radiculopathy be withdrawn from appellate review. 7. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of whether new and material evidence has been received to reopen the claim for service connection for a bilateral foot disability be withdrawn from appellate review. 8. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of whether new and material evidence has been submitted to reopen the claim for service connection for headaches be withdrawn from appellate review. 9. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of whether new and material evidence has been received to reopen the claim of service connection for hypertension be withdrawn from appellate review. 10. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of whether new and material evidence has been received to reopen the claim of service connection for a left shoulder disability be withdrawn from appellate review. 11. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of whether new and material evidence has been received to reopen the claim of service connection for ventricular depolarization be withdrawn from appellate review. 12. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss be withdrawn from appellate review. 13. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of entitlement to service connection for carpal tunnel syndrome be withdrawn from appellate review. 14. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of entitlement to service connection for diabetes mellitus be withdrawn from appellate review. 15. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of entitlement for specially adapted housing be withdrawn from appellate review. 16. In April 2020, prior to the promulgation of a decision in the current appeal, the Veteran requested that the claim of entitlement for a special home adaptation grant be withdrawn from appellate review. CONCLUSIONS OF LAW 1. The criteria for restoration of the 40 percent evaluation for degenerative spondylosis of the lumbar spine, effective April 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 2. The criteria for restoration of the 20 percent evaluation for right lower extremity radiculopathy, effective April 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.124a, Diagnostic Code 8520. 3. The criteria for restoration of the 20 percent evaluation for left lower extremity radiculopathy, effective April 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.124a, Diagnostic Code 8520. 4. The criteria for dismissal of the Substantive Appeal with respect to entitlement to an evaluation in excess of 20 percent for cervical spine osteoarthritis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for dismissal of the Substantive Appeal with respect to entitlement to an evaluation in excess of 10 percent for a right knee strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 6. The criteria for dismissal of the Substantive Appeal with respect to entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 7. The criteria for dismissal of the Substantive Appeal with respect to whether new and material evidence has been received to reopen the claim for service connection for a bilateral foot disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 8. The criteria for dismissal of the Substantive Appeal with respect to whether new and material evidence has been submitted to reopen the claim for service connection for headaches have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 9. The criteria for dismissal of the Substantive Appeal with respect to whether new and material evidence has been received to reopen the claim of service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 10. The criteria for dismissal of the Substantive Appeal with respect to whether new and material evidence has been received to reopen the claim of service connection for a left shoulder disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 11. The criteria for dismissal of the Substantive Appeal with respect to whether new and material evidence has been received to reopen the claim of service connection for ventricular depolarization have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 12. The criteria for dismissal of the Substantive Appeal with respect to whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 13. The criteria for dismissal of the Substantive Appeal with respect to entitlement to service connection for carpal tunnel syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 14. The criteria for dismissal of the Substantive Appeal with respect to entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 15. The criteria for dismissal of the Substantive Appeal with respect to entitlement to specially adapted housing have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 16. The criteria for dismissal of the Substantive Appeal with respect to entitlement to a special home adaptation grant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1978 to October 1978 and from May 1980 to May 1991. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2020. A transcript is of record. Reduced Rating 1. Whether the reduction of the 40 percent evaluation for degenerative spondylosis of the lumbar spine to 20 percent effective April 1, 2016 was proper 2. Whether the reduction of the Veteran’s 20 percent evaluation for right lower extremity radiculopathy to 10 percent effective April 1, 2016 was proper 3. Whether the reduction of the Veteran’s 20 percent evaluation for left lower extremity radiculopathy to 10 percent effective April 1, 2016 was proper There are specific particularized notice requirements that apply in case where the issue is a reduction in rating. These procedural safeguards afforded to the claimant are set forth under 38 C.F.R. § 3.105(e), are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). These requirements were met in an October 2013 letter and proposed rating reduction. The ratings were subsequently reduced in a March 2016 rating decision. A 40 percent rating was in effect for degenerative spondylosis of the lumbar spine from March 6, 2012 through March 31, 2016. Twenty percent ratings for right and left lower extremity radiculopathy were also in effect from those dates. The ratings were in effect for less than five years. Therefore, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply, and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 4 Vet. App. 413 (1993) (the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of his life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran had an examination arranged through VA in September 2012. He reported that when walking he got sore and his legs would go numb just above the knee. He got a burning sensation if he continued walking. Flare-ups caused difficulty bending over, with standing for more than 10 to 15 minutes, and with sitting for long periods of time. On examination, range of motion of the thoracolumbar spine was forward flexion to 30 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. There had not been any incapacitating episodes due to IDVS in the past 12 months. The left lower extremity had moderate numbness. There were no other signs or symptoms of radiculopathy in either lower extremity. The examiner felt that there was moderate left lower extremity radiculopathy and no right lower extremity radiculopathy. The impact on employment was that the Veteran could not stand for long periods, could not walk far, and could not sit for long periods without getting up to stretch or move. The Veteran had another examination arranged through VA in March 2013 at which he said that his back got unbearably painful if he stood for more than 15 minutes. His back would start to hurt while walking, and his left thigh got numb with a burning sensation. Flare-ups caused back pain. On examination, range of motion was forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 15 degrees. There had not been any incapacitating episodes due to IDVS in the past 12 months. A sensory examination showed decreased sensation to light touch in the feet and toes. The lower extremities had severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner felt that the Veteran had moderate bilateral lower extremity radiculopathy. The Veteran had a peripheral nerves examination arranged through VA in February 2016. The lower extremities had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Sensory and reflex examinations were normal. The examiner felt that there was mild bilateral incomplete paralysis of the sciatic nerves. The functional impact of the peripheral neuropathy was that the Veteran could not bear weight or walk for long periods. The Veteran also had an examination for his back in February 2016 at which he reported that his condition had worsened. He had flare-ups that were unbearable, and at times he would fall when his back locked up. On examination, forward flexion was to 40 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation was to 20 degrees. There had not been any episodes or acute signs and symptoms due to IVDS in the past 12 months requiring bedrest. The examiner felt that overall the bilateral lower extremity radiculopathy was mild. The Veteran had bilateral lower extremity radiculopathy with mild intermittent pain and mild paresthesias and/or dysesthesias. The functional impact was that the Veteran had an inability to bear weight for long. The Veteran testified at the April 2020 Board hearing that between 2012 and 2016 his back pain increased in intensity and frequency. The pain came and went, and there was sharp pain, tingling, and numbness that went down both legs, with the left leg worse. His condition had gotten a little worse since 2016. Having considered the evidence of record, the Board finds that the record does not show that there was sustained improvement in the Veteran’s degenerative spondylosis of the lumbar spine and bilateral lower extremity radiculopathy. The ranges of motion for the lumbosacral spine at the September 2012, March 2013, and February 2016 examinations was similar, and the Veteran reported similar symptomatology. His report regarding flare-ups at the February 2016 indicates that that symptoms may have worsened. While the March 2013 examiner described the bilateral lower extremity radiculopathy as moderate and the February 2016 examiner felt it was mild, the Veteran credibly testified at the April 2020 hearing that there had not been improvement. Overall, the record shows that the Veteran continued to have limitation of motion and back pain with radiculopathy to the lower extremities that limited activities such as standing and walking. Accordingly, the 40 percent rating for the degenerative spondylosis of the lumbar spine and separate 20 percent ratings for radiculopathy of each lower extremity are restored effective April 1, 2016. The Veteran testified at the April 2020 Board hearing that he is not seeking ratings in excess of those assigned herein, and therefore this decision is a complete grant of the benefits sought on appeal for these issues. Increased Rating, Service Connection, and Specially Adapted Housing Entitlement to an evaluation in excess of 20 percent for cervical spine osteoarthritis Entitlement to an evaluation in excess of 10 percent for a right knee strain Entitlement to an evaluation in excess of 20 percent for right upper extremity radiculopathy Whether new and material evidence has been received to reopen the claim for service connection for a bilateral foot disability Whether new and material evidence has been submitted to reopen the claim for service connection for headaches Whether new and material evidence has been received to reopen the claim of service connection for hypertension Whether new and material evidence has been received to reopen the claim of service connection for a left shoulder disability Whether new and material evidence has been received to reopen the claim of service connection for ventricular depolarization Whether new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss Entitlement to service connection for carpal tunnel syndrome Entitlement to service connection for diabetes mellitus Entitlement to specially adapted housing Entitlement to a special home adaptation grant The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the April 2020 Board hearing, the Veteran withdraw the claims for increased ratings for cervical spine osteoarthritis, a right knee strain, and right upper extremity radiculopathy, whether new and material evidence has been received to reopen the claims for service connection for a bilateral foot disability, headaches, hypertension, a left shoulder disability, ventricular depolarization, and bilateral hearing loss; entitlement to service connection for carpal tunnel syndrome and diabetes mellitus; and entitlement to specially adapted housing, and a special home adaption grant. (Continued on the next page)   This request has been reduced to writing through the transcript of the hearing, and the discussion between the undersigned Veterans Law Judge, the Veteran, and his representative prior to the hearing show that the Veteran understands the consequences of withdrawing this issue. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (withdrawal of a claim is effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant). Thus, there are no allegations of error of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to consider an appeal in these matters. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.