Citation Nr: A20005778 Decision Date: 04/16/20 Archive Date: 04/16/20 DOCKET NO. 200107-52944 DATE: April 16, 2020 ORDER The reduction in the disability rating for service-connected diabetic peripheral neuropathy of the right foot and lower leg (right lower peripheral neuropathy) from 40 percent to 20 percent disabling, effective March 1, 2020, was improper and restoration of the 40 percent rating is granted, effective March 1, 2020, subject to the laws and regulations governing the payment of monetary benefits. The reduction in the disability rating for service-connected diabetic peripheral neuropathy of the left foot and lower leg (left lower peripheral neuropathy) from 40 percent to 20 percent disabling, effective March 1, 2020, was improper and restoration of the 40 percent rating is granted, effective March 1, 2020, subject to the laws and regulations governing the payment of monetary benefits. The reduction in the disability rating for service-connected diabetic peripheral neuropathy of the left lower femoral nerve (femoral nerve peripheral neuropathy) from 10 percent to noncompensable, effective March 1, 2020, was improper and restoration of the 10 percent rating is granted, effective March 1, 2020, subject to the laws and regulations governing the payment of monetary benefits. The reduction in the disability rating for service-connected diabetic peripheral neuropathy of the right lower femoral nerve (femoral nerve peripheral neuropathy) from 10 percent to noncompensable, effective March 1, 2020, was improper and restoration of the 10 percent rating is granted, effective March 1, 2020, subject to the laws and regulations governing the payment of monetary benefits. REMANDED A disability rating higher than 40 percent for service-connected right lower peripheral neuropathy is remanded. A disability rating higher than 40 percent for service-connected left lower peripheral neuropathy is remanded. FINDINGS OF FACT 1. In August 2019, a Department of Veterans Affairs (VA) Regional Office (RO) proposed to reduce the disability rating of the Veteran’s service-connected right lower peripheral neuropathy from 40 percent to 20 percent. In September 2019, the Veteran requested a predetermination hearing to address the proposed reduction. The evidence of record demonstrates that a predetermination hearing was not held prior to the rating reduction being effectuated in a December 2019 rating decision. 2. In August 2019, a VA RO proposed to reduce the disability rating of the Veteran’s service-connected left lower peripheral neuropathy from 40 percent to 20 percent. In September 2019, the Veteran requested a predetermination hearing to address the proposed reduction. The evidence of record demonstrates that a predetermination hearing was not held prior to the rating reduction being effectuated in a December 2019 rating decision. 3. In August 2019, a VA RO proposed to reduce the disability rating of the Veteran’s service-connected femoral nerve peripheral neuropathy of the left lower extremity from 10 percent to a noncompensable rating. In September 2019, the Veteran requested a predetermination hearing to address the proposed reduction. The evidence of record demonstrates that a predetermination hearing was not held prior to the rating reduction being effectuated in a December 2019 rating decision. 4. In August 2019, a VA RO proposed to reduce the disability rating of the Veteran’s service-connected femoral nerve peripheral neuropathy of the right lower extremity from 10 percent to a noncompensable rating. In September 2019, the Veteran requested a predetermination hearing to address the proposed reduction. The evidence of record demonstrates that a predetermination hearing was not held prior to the rating reduction being effectuated in a December 2019 rating decision. CONCLUSIONS OF LAW 1. The reduction in the rating of the Veteran’s right lower peripheral neuropathy disability from 40 to 20 percent disabling, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 2. The reduction in the rating of the Veteran’s left lower peripheral neuropathy disability from 40 to 20 percent disabling, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 3. The reduction in the rating of the Veteran’s femoral nerve peripheral neuropathy disability of his left lower extremity from 10 percent to noncompensable, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. 4. The reduction in the rating of the Veteran’s femoral nerve peripheral neuropathy disability of his right lower extremity from 10 percent to noncompensable, effective March 1, 2020, was improper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1967 to September 1969. These issues are on appeal from a December 2019 Appeals Modernization Act (AMA) rating decision. In January 2020, the Veteran timely appealed that determination to the Board of Veterans’ Appeals (Board) and requested direct review of the evidence considered by the agency of original jurisdiction (AOJ). As he requested direct review by the Board without submission of additional evidence and without a Board hearing, only evidence of record at the time of the January 2020 rating decision is being considered. 38 C.F.R. § 20.301. Thus, pertinent evidence, including the results of a February 2020 VA examination, cannot be considered. The Board notes that the Veteran’s claims which led to the reductions for the service-connected right and left lower peripheral neuropathy disabilities were claims for higher ratings, and the Veteran properly perfected an appeal of these issues. Considering that the reductions appeal for these specified disabilities arose from the claims for higher ratings, the Board will take jurisdiction of the reduction claims as part and parcel of the claims for higher ratings for the right and left lower peripheral neuropathy disabilities because the claims of increased ratings cover the period prior to, during, and after the reductions. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (holding that a review of an increased rating claim may take into account varying and distinct disability ratings throughout the entire time period the increased rating claim has been pending, to account for the dynamic nature of the disorder at issue). Accordingly, the Board takes jurisdiction of the issues of whether the reductions were proper. However, as the Veteran did not initiate an appeal regarding higher initial ratings for his bilateral femoral nerve peripheral neuropathy disabilities, the Board will not take jurisdiction of this issue. As such, only the propriety of the rating reduction issue will be addressed for the service-connected bilateral diabetic peripheral neuropathy of the femoral nerve. The Board acknowledges the Veteran’s September 2019 and January 2020 statements that the RO did not adjudicate the issue of entitlement to a total disability for individual unemployability due to service-connected disabilities (TDIU). However, the Board notes that the RO addressed this issue in an August 2019 rating decision, and the Veteran did not appeal that decision. Further, in September 2019, VA notified the Veteran and his representative that it was necessary for the Veteran to submit his TDIU appeal on the proper form. A review of the record shows that the appropriate form has not been submitted. Propriety of Rating Reductions for Bilateral Lower Peripheral Neuropathy and Bilateral Lower Femoral Nerve Peripheral Neuropathy When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). If additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. A veteran will be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. §§ 3.105(h). These are such important safeguards that the U.S. Court of Appeals for Veterans Claims (Court) has held that where VA has reduced a veteran’s rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Here, the Veteran contends that the rating reductions for his service-connected bilateral lower peripheral neuropathy and bilateral lower femoral nerve peripheral neuropathy disabilities from 40 percent to 20 percent, and from 10 percent to noncompensable, respectively, were improper and that in fact his disabilities have worsened. Based on a review of the evidence of record, the Board finds that the rating reductions were improper and that restoration of the prior disability ratings is warranted for the entire period on appeal. As an initial matter, the Board notes that the rating reductions decreased the Veteran’s combined disability rating from 100 percent to 90 percent, resulting in a reduction in the amount of compensation payable to the Veteran. As such, the procedural requirements of 38 C.F.R. § 3.105(e) apply. Here, in August 2019, a rating decision proposing the reduction was issued setting forth all material facts and reasons for the proposed reduction. Additionally, the Veteran was informed in a notification letter dated August 16, 2019, of the contemplated action, furnished detailed reasons thereof, given 60 days for presentation of additional evidence, and informed that he may request a predetermination hearing within 30 days of the date of the notice. As such, the Board finds the procedural requirements under 38 C.F.R. § 3.105(e) have been satisfied. Pursuant to 38 C.F.R. § 3.105(i)(1), VA is to inform the Veteran that he has the opportunity for a hearing prior to the decision as to whether a reduction is warranted, provided that a request for a hearing is received by VA within 30 days from the date of notice. In this case, in response to the August 16, 2019 notification letter, the Veteran submitted a timely request for a predetermination hearing regarding the rating reductions on September 3, 2019. The request was submitted prior to any reduction action by the RO and in accordance with the information outlined in the August 16, 2019 notice letter. Further review of the claims file does not indicate that the RO acknowledged or responded to the Veteran’s request for a predetermination hearing. Instead, without honoring the Veteran’s request, the RO proceeded to reduce the ratings for his peripheral neuropathy disabilities in a December 2019 rating decision. As such, the provisions of 38 C.F.R. § 3.105(i) were not met. As the RO failed to adhere to a due process requirement governing rating reductions, i.e., the Veteran’s timely request for a predetermination hearing pursuant to 38 C.F.R. § 3.105(i), the Board finds that the March 2020 reductions are improper and are void ab initio. Accordingly, restoration of the Veteran’s 40 percent ratings for each of his lower extremity peripheral neuropathy and of his 10 percent ratings for each of his femoral nerve peripheral neuropathy is necessary, and, to this extent only, the appeal is granted. REMAND Disability ratings higher than 40 percent for service-connected right and left lower peripheral neuropathy The Veteran contends that the severity of his right and left lower peripheral neuropathy warrant higher ratings. In a September 2019 statement, his representative noted that the ratings hinged on the terms “moderate” and “moderately severe,” and do not accurately reflect the current severity of the disabilities. A review of the Veteran’s VA treatment notes indicates that these disabilities have progressed in severity over the years. In a January 2019 lay statement, the Veteran indicated that he had lost sensation in his feet, which led to an automobile accident. At a March 2019 VA examination, on which the rating reduction was initially based, the examiner noted that the Veteran’s condition had worsened due to increased difficulty with balance, more frequent falls, the requirement for using a cane to assist with walking, and not being able to drive as he cannot feel the brake and gas pedals. The examiner indicated that the Veteran had no sensation in the right and left lower extremities. Although he acknowledged that the Veteran’s disabilities had increased in severity, he still indicated that the disabilities were moderate in severity, which does not reflect any change from the prior December 2018 VA examination. The Veteran notified VA that he was not adequately examined at the March 2019 VA examination. As such, he was re-examined for his peripheral neuropathy disabilities in November 2019. However, for reasons indicated below, the Board finds the November 2019 VA examination to be problematic, thereby constituting a pre-decisional duty to assist error under AMA. As such, it cannot be used to decide the Veteran’s claim and a remand is necessary for the AOJ to schedule him for another VA examination. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, similar to the March 2019 VA examiner, the November 2019 examiner indicated that the Veteran’s disabilities have progressed in severity. Specifically, the examiner noted that the diagnoses have changed to reflect a progression of the previous diagnoses. However, it is not clear from the examiner’s notes whether he is only referring to the additional diagnoses assigned for the upper extremities. The notes are contradictory and require further explanation, especially since the examiner still indicated that the Veteran’s disabilities are moderate in severity, which, as previously noted, reflects no change from prior examinations. While the words “mild,” “moderate,” and “severe,” as used in the various Diagnostic Codes, are not defined in the Rating Schedule, regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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. In the Veteran’s case, it does not appear as if these factors were considered by the examiner. In sum, the Veteran asserts that his disabilities have increased in severity, and the Veteran’s VA treatment records show that these disabilities have progressed over the years. However, the record indicates that the VA examiner may not have reviewed the Veteran’s entire medical history and factored in relevant reports of complaints and treatment into his assessment of the Veteran, including various 2019 treatment notes from VA podiatrists. Further, the examiner’s conclusions are not consistent with the examination results; thus, further clarification is needed. Due to the noted deficiencies related to the examination report, the Board finds that an additional VA examination is necessary to assess the extent and severity of the Veteran’s service-connected right and left lower diabetic peripheral neuropathy disabilities. Accordingly, these matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to assess the extent and severity of his service-connected right and left lower diabetic peripheral neuropathy. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should review all pertinent records associated with the claims file, including the Veteran’s lay statements and statements and treatment reports from the Veteran’s podiatrists. All signs and symptoms necessary for evaluating the right and left lower diabetic peripheral neuropathy should be reported in detail. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating an opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the issues of entitlement to disability ratings greater than 40 percent for the service-connected right and left lower (CONTINUED ON NEXT PAGE) diabetic peripheral neuropathy. Allow the Veteran and his representative time to respond before returning this issue to the Board, if any portion remains denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.