Citation Nr: 20049953 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 18-55 197A DATE: July 28, 2020 ORDER The issue of entitlement to a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is dismissed. The reduction in the disability rating for the service-connected sensory dysfunction involving the right lateral foot, posterior thigh, and lateral leg with sciatic nerve involvement (sensory dysfunction of the right foot) from 20 percent to 10 percent as of September 1, 2018, was proper. REMANDED Whether the Veteran’s VA Form 9, substantive appeal, submitted in December 2018, was timely filed as to the issue of entitlement to a TDIU, is remanded. FINDINGS OF FACT 1. In response to the receipt of a January 2016 TDIU claim form, the RO denied entitlement to a TDIU in a February 2016 rating decision; the Veteran’s Notice of Disagreement (NOD) was received in February 2016; the RO issued a Statement of the Case in March 2018; and the Veteran’s VA Form 9 was received in December 2018. 2. In January 2019 correspondence, the RO notified the Veteran that his VA Form 9, substantive appeal to the Board, received in December 2018, could not be accepted because it was not timely; the Veteran disagreed with the timeliness of the 9 issue in a February 2019 NOD, and without explanation, the RO issued a Supplemental Statement of the Case (SSOC) as to the issue of entitlement to a TDIU in April 2019; the issue was subsequently certified to the Board on appeal. 3. In a February 2016 rating decision, the RO confirmed and continued a previously assigned 20 percent rating for the service-connected sensory dysfunction of the right foot; the Veteran did not appeal that determination. 4. A March 2018 rating decision, which was not issued pursuant to an increased rating claim, proposed to reduce the 20 percent disability rating assigned for the Veteran’s service-connected sensory dysfunction of the right foot. 5. In a June 2018 rating decision, the disability rating for the service-connected sensory dysfunction of the right foot was reduced to 10 percent, effective September 1, 2018. 6. The rating reduction from 20 percent to 10 percent for the service-connected sensory dysfunction of the right foot was carried out in accordance with applicable procedures and is proper, as it was supported by the evidence contained in the record at the time of the reduction showing a material improvement in the disability. CONCLUSIONS OF LAW 1. The Board does not currently have jurisdiction over a claim of entitlement to a TDIU. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.22, 20.103, 20.104, 20.201. 2. The reduction in rating from 20 percent to 10 percent for the service-connected sensory dysfunction of the right foot, effective September 1, 2018, was proper. 38 U.S.C. § 1155; 38 C.F.R. § 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1989. This case is before the Board of Veterans’ Appeals (Board) on appeal from February 2016 and June 2018 rating decisions. The February 2016 rating decision, in pertinent part, denied entitlement to a TDIU and confirmed and continued a previously assigned 20 percent disability rating for the service-connected right foot sensory dysfunction. The Veteran’s Notice of Disagreement (NOD) was received in February 2016. Notably, the Veteran only disagreed with the denial of a TDIU in his NOD. In January 2018, the Board remanded the claim for a TDIU for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued an SOC addressing the TDIU issue in February 2018 and again in March 2018. The Veteran’s VA Form 9 was received in December 2018, and the RO subsequently notified the Veteran in February 2019 correspondence that his VA Form 9 as to the issue of entitlement to a TDIU was not timely filed. Despite the RO’s February 2019 notification that the Veteran’s VA Form 9 as to the issue of entitlement to a TDIU was untimely, the RO subsequently issued a SSOC in April 2019 and then certified the TDIU appeal to the Board. As there was no indication that the RO reconsidered the timeliness of the 9 question before issuing the SSOC, the Board concludes that the SSOC was issued in error. In a March 2018 rating decision, the RO proposed to reduce the 20 percent disability rating assigned for the Veteran’s service-connected sensory dysfunction of the right foot. In a June 2018 rating decision, the disability rating for the service-connected sensory dysfunction of the right foot was reduced to 10 percent, effective September 1, 2018. As there was no pending increased rating claim involving the service-connected sensory dysfunction of the right foot at the time of the March 2018 proposal or the June 2018 reduction, the issue on appeal is limited to the propriety of the reduction. 1. Entitlement to a TDIU A legacy appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.20. A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the statement of the case (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends). 38 C.F.R. §§ 19.20, 19.51, 19.52. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The time to appeal a VA decision does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his appellate rights. See Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Moreover, the filing of a timely substantive appeal, as opposed to a notice of disagreement, is not a jurisdictional bar to the Board’s jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness about a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.104. The AOJ may close a case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), and a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 19.34, 19.52. In determining its jurisdiction, the Board must also be cognizant that the VA adjudicative system is non-adversarial and pro-claimant in nature wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, however, at the time that the pertinent SOC was mailed in March and April 2018, the Veteran was represented by a Veterans Service Organization and was not in a pro se or self-represented capacity. By way of history, the Veteran filed a claim for entitlement to a TDIU in October 2015, and the RO denied the Veteran’s claim in the February 2016 rating decision. In response to the February 2016 rating decision, the Veteran filed a timely NOD. In the January 2018 Board decision, the Veteran’s claim of entitlement to a TDIU was remanded for issuance of a SOC. In February 2018 and March 2018, the RO issued SOCs to the Veteran and his representative; however, the record shows that the March 2018 SOC was inadvertently sent to the wrong address and was returned in the mail. Due to the notification of the failed delivery, the RO sent a letter enclosing another copy of the SOC on April 24, 2018. Then, in December 2018 correspondence, the RO notified the Veteran that a copy of the March 2018 SOC was being provided to him in response to a Freedom of Information Act (FOIA) request. In December 2018, the Veteran submitted a VA Form 9 for his TDIU claim, stating that he did not receive a decision letter dated March 2018 denying his claim, and requested that it be reopened. However, in response, in January 2019 the RO advised the Veteran that his VA Form 9 could not be accepted as a timely substantive appeal because the time limit to continue his appeal had passed. The letter explained that in order to continue his appeal he would have had to submit his substantive appeal no later than one year following notification of adverse decision, or within 60 days from the date of the SOC. It indicates that his SOC was issued on March 6, 2018 and that he had until May 6, 2018 to submit his substantive appeal. While the letter notified the Veteran that he had until May 6, 2018 to submit his substantive appeal, the record shows that the Veteran did not receive the SOC until April 24, 2018. Thus, he had until June 24, 2018 to file his substantive appeal. That notwithstanding, the Veteran submitted a VA Form 9 on December 20, 2018. In a February 2019 NOD, the Veteran indicated that he did not receive the VA Form 9 and did not receive notification of the SOC on March 6, 2018, and that he was, therefore, unable to submit it in a timely manner and was unaware of the deadline. However, there is no indication that the Veteran’s representative at that time (Disabled American Veterans) did not receive a copy of the March SOC. The record shows that after notifying the Veteran that his VA Form 9 was untimely, the RO nevertheless issued two subsequent supplemental statements of the case (SSOC) in April 2019 and August 2019. The RO provided no explanation for why the SSOCs were issued following the notice letter sent to the Veteran notifying him that his VA Form 9 was not timely submitted. There is nothing in the record to suggest that the RO reversed their January 2019 determination regarding the untimely December 2018 Form 9, and accordingly, the Board must conclude that the subsequently issued SSOCs were prepared in error. The United States Court of Appeals for Veterans Claims has held that a request for a TDIU may be a component of an increased rating claim if expressly raised by a Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran’s TDIU claim was not part of an increased rating claim. As noted above, the Veteran filed a stand-alone TDIU application and there was no increased rating claim pending with respect to the right foot sensory dysfunction, or other service-connected disability that would trigger an inferred TDIU claim under Rice. Thus, the Board concludes that the April 2019 and August 2019 SSOCs were erroneously issued following the RO’s February 2019 notification to the Veteran that his VA Form 9, substantive appeal to the Board was untimely. As a result, the TDIU appeal was erroneously certified to the Board. Accordingly, the appeal as to entitlement to a TDIU is not properly before the Board, and the claim is dismissed for lack of jurisdiction. 2. Whether the reduction in the disability rating for the service-connected sensory dysfunction of the right foot from 20 percent was proper In a March 2018 rating decision, the RO proposed to reduce the Veteran’s service-connected sensory dysfunction of the right foot from 20 percent to a 0 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8720. The Veteran asserts that the reduction was not proper. The Veteran was notified that if his rating was reduced to 0 percent, his overall disability rating would be lowered from 90 percent to 80 percent. However, as discussed in more detail below, in June 2018, the RO ultimately reduced the Veteran’s sensory dysfunction of the right foot from 20 percent to 10 percent, effective September 1, 2018. The reduction of the rating to 10 percent did not result in a reduction of the Veteran’s overall disability rating. Thus, as the reduction to 10 percent is more favorable than a reduction to 0 percent, any RO error in the amount of the proposed reduction is harmless. The RO complied with the procedural safeguards regarding the way the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. In this case, the Veteran was notified of the proposed reduction in a March 2018 rating decision. Subsequently, the RO properly provided the Veteran with a notification letter stating that the Veteran had 60 days to provide additional evidence to support the propriety of the current disability rating, therefore, meeting the due process requirements. In June 2018, the RO reduced the Veteran’s rating for service-connected sensory dysfunction of the right foot from 20 percent to 10 percent, effective September 1, 2018. The Veteran appealed the propriety of the rating reduction. A rating reduction is not proper unless the veteran’s disability shows actual improvement has occurred and that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). 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 burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). 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 evaluations 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. Kitchens v. Brown, 7 Vet. App. 320 (1995). A rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The provisions of 38 C.F.R. § 3.344(a) and (b) provide greater protections to a Veteran in regard to reductions of rating evaluations. As noted above, the regulation is applicable if the evaluation was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Where a rating reduction is made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ’s reduction was warranted. Kitchens, 7 Vet. App. 320 (1995). At the time the reduction became effective on September 1, 2018, the 20 percent rating for the service-connected sensory dysfunction of the right foot had been continuously in effect for more than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and(b) are applicable. The Veteran’s condition is currently rated under the criteria found at 38 C.F.R. § 4.124, DC 8720. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various DCs 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 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 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. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated with a maximum equal to severe, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated with a maximum equal to moderate incomplete paralysis. Tic douloureux or trifacial neuralgia may be rated up to complete paralysis of the affected nerve. In this case, as per 38 C.F.R. § 3.344(a) and(b), the Board finds that based on a review of the entire record, the March 2018 VA examination is full and complete, and the record clearly reflects a finding of material improvement. As there is no competent medical evidence or reports from the Veteran indicating otherwise, the Board is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. The December 2015 VA examination report shows that an EMG was not performed. The report indicates that based on symptoms and findings from the examination, the examiner found mild incomplete paralysis of the sciatic and femoral nerves on the right and moderate incomplete paralysis of the sciatic nerve on the left. The report indicates that there were no other significant diagnostic test findings or results. The March 2018 VA examination report shows that EMG testing/nerve conduction studies were performed. The report shows a normal sciatic nerve on the right and mild incomplete paralysis of the sciatic nerve on the left. The report shows that EMG testing revealed normal right lower extremity and an abnormal left lower extremity. The Board finds that improvement of the sensory dysfunction of the right foot has been demonstrated, namely, the March 2018 VA examination for peripheral nerves conditions, using objective findings from EMG testing, shows that the Veteran’s right foot showed a normal sciatic nerve on the right, while showing mild incomplete paralysis on the left. The March 2018 VA examination utilized diagnostic testing to reveal that the Veteran’s sensory dysfunction had materially improved, and there is no competent medical evidence to indicate otherwise. Given the objective neurological testing, the more recent VA examination in March 2018 is more complete than the examination on which the initial 20 percent rating was based. The medical evidence of record at the time of the reduction does not show incomplete paralysis of the right foot. Therefore, the rating reduction was proper, and the criteria for restoration of the 20 percent disability rating for sensory dysfunction of the right foot, effective September 1, 2018, have not been met. Thus, the evidence supports a finding that the Veteran’s disability symptoms did not rise to the level of severity required for a 20 percent disability rating under DC 8720. The Veteran does not demonstrate any symptoms warranting a rating of 20 percent; therefore, his sensory dysfunction of the right foot is appropriately rated under the pertinent rating criteria. The rating reduction in this case was procedural in nature and by operation of law, is proper. For the foregoing reasons, the preponderance of the evidence demonstrates actual improvement of the sensory dysfunction of the right foot to warrant a reduction from 20 percent to 10 percent, effective September 1, 2016; therefore, the reduction was proper, and restoration of the 20 percent disability rating is not warranted. 38 C.F.R. § 3.105(e). REASONS FOR REMAND 1. Whether the Veteran’s VA Form 9, substantive appeal, submitted in December 2018, was timely filed as to the issue of entitlement to a TDIU Whether a substantive appeal has been filed on time is an appealable issue. 38 C.F.R. § 19.34. As discussed above, the RO determined that the Veteran’s substantive appeal, submitted in December 2018, was not timely filed in response to March 2018 and April 2018 SOCs. See January 2019 RO notification letter. In a February 2019 NOD, the Veteran indicated that he did not receive the VA Form 9 or notification of the SOC on March 6, 2018, and that he was, therefore, unable to submit his VA Form 9 in a timely manner because he was unaware of the deadline. As noted above, instead of issuing a SOC regarding the timeliness issue, the RO inadvertently issued SSOCs as to the issue of entitlement to a TDIU and erroneously certified the issue to the Board. Because the Board is dismissing the TDIU claim for lack of jurisdiction, and, given that the Veteran submitted a valid, and timely, NOD as to the timeliness issue, the RO must now respond to the Veteran’s February 2019 NOD and issue a SOC addressing the issue of whether the Veteran’s December 2018 VA Form 9 as to the issue of entitlement to a TDIU was timely. Accordingly, a remand is required for the AOJ to issue an SOC addressing whether the Veteran’s December 2018 VA Form 9, substantive appeal to the Board as to the issue of entitlement to a TDIU, was timely filed. 38 C.F.R. §§ 19.26, 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: (Continued on the next page)   Send the Veteran and his current representative a SOC that addresses the issue as to whether the VA Form 9, substantive appeal, received in December 2018, was timely filed as to the issue of entitlement to a TDIU. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.