Citation Nr: 21002424 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-45 530 DATE: January 13, 2021 ORDER As the reduction in the disability rating from 30 percent to 0 percent for the Veteran’s left little finger disability (previously evaluated as Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia) is not proper, restoration of the 30 percent rating is granted, effective August 6, 2016. REMANDED Entitlement to an increased disability rating for Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia is remanded. FINDINGS OF FACT 1. A 30 percent rating for the Veteran’s service-connected left little finger disability (previously evaluated as Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia) was in effect from August 14, 2003 to August 6, 2016—for a period of more than five years. 2. In a September 2016 rating decision, the Agency of Original Jurisdiction (AOJ) reduced the Veteran’s left little finger disability rating from 30 percent to 0 percent, effective August 6, 2016. 3. The AOJ’s decision to reduce the Veteran’s left little finger disability rating from 30 percent to 0 percent, effective August 6, 2016, was not proper. The evidence of record did not demonstrate improvement reasonably certain to continue under the ordinary conditions of life. In addition, the evidence does not reflect an actual, material change in the disability. CONCLUSION OF LAW As the AOJ’s reduction of the rating for the Veteran’s service-connected left little finger disability rating (previously evaluated as Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia) from 30 percent to 0 percent disabling, effective August 6, 2016, was not proper, the criteria for restoration of the 30 percent rating are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344(a), (b), 4.1, 4.2, 4.10, 4.13, 4.25, 4.26, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5003, 5222, 5228, 5229, 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June to November 1963 and October 1981 to November 1996. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the AOJ. In September 2016, the AOJ issued a rating decision that reduced the disability rating assigned to the Veteran’s service-connected Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia evaluated under Diagnostic Code (DC) 5222 from 30 percent to zero percent. The AOJ also assigned a separate evaluation for the Veteran’s left little finger and assigned a zero percent rating under DC 5230-5003; a separate evaluation for his left index finger and assigned a zero percent rating under DC 5229-5003; and a separate evaluation for his left thumb and assigned a zero percent rating under DC 5228-5003. The Veteran timely disagreed in a December 2016 Notice of Disagreement (NOD) and perfected his appeal in an August 2017 VA Form 9. In July 2019, the Veteran’s case was received at the Board. In November 2020, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Whether the reduction in evaluation of left little finger disability with limitation of motion (previously evaluation as Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia) from 30 percent to 0 percent disabling effective August 6, 2016, was proper. The Veteran contends a reduction to the disability rating assigned to his left little finger disability was not warranted. See December 2016 NOD. He also contends the August 2016 VA disability examination the served as the basis of the reduction was not an adequate evaluation of his disability. See Transcript dated November 2020 at 4. The question for the Board is whether the August 2016 VA disability examination the AOJ relied on to address whether improvement has occurred was adequate to adjudicate the Veteran’s claim. For the reasons discussed below, the Board concludes it was not. When a Veteran’s disability rating is reduced, the Board must decide whether the reduction was proper. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). The VA must comply with procedural and substantive provisions in order to sustain a rating reduction. The procedural requirements are set for in 38 C.F.R. § 3.105(e) and (i); those provisions require the AOJ to issue a proposal of the rating reduction and advise the Veteran of his or her rights to have what is called a predetermination hearing. But those provisions do not apply if the proposed rating reduction does not result in the actual total compensation amount for the Veteran. See VA Office of General Counsel Precedential Opinion (VAOPGCPREC) 71-91 at 3-4. The substantive requirements applicable to disability rating reductions are based on the number of years the relevant disability rating has been in effect; different standards apply if the disability rating has been in effect for less than five years, five years or more, or 20 years or more. Those durations are measured from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 418-19 (1993). In cases where the duration is more than five years, but less than twenty years (as is applicable here), the substantive requirements set forth in 38 C.F.R. § 3.344(a) and (b) apply Also, in any reduction case, the VA needs to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or how long that rating has been in effect; these regulations include 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13. Under §§ 4.1 and 4.2, the VA is “required in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Brown, 5 Vet. App at 421. And, under §§ 4.2 and 4.10, VA must not only “determine [] that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Id. It is the VA’s burden to establish by a preponderance of the evidence that the rating reduction is warranted. Brown, 5 Vet. App. at 421-22. If any of the factors listed in those provisions are not met, the rating reduction will be void ab initio, or void from the beginning, and the rating will be restored to back to its previous level. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Beginning with the initial grant of service-connection for the disability at issue, in April 1997, the Veteran was granted service-connection for Boxer’s fracture of the left hand with secondary loss of function of the thumb and index finger related to local anaesthesia. The Veteran’s left hand disability was assigned a 30 percent disability rating under DC 5222 effective December 1, 1996. See April 1997 Rating Decision. The record reflects the disability rating assigned to the Veteran’s left had not changed in June 2016, when the VA received a claim for a disability rating greater than 30 percent for the Veteran’s left hand disability. In August 2016, the Veteran underwent a disability examination for his left hand. The Veteran reported his left hand disability has stayed the same since his injury. He also reported flare-ups; he described frequent dull, aching pains, that lasts for hours. He reported his flare-ups impact his ability to grip things with his fingers and thumb; and loss of ability pick up small objects with his L hand. He indicated he has to resort to use of other hand to pick up things. See August 2016 VA Disability Benefits Questionnaire (DBQ) at 3-4. The examiner noted the diagnoses of degenerative arthritis at the left hand and Boxer’s fracture of the L hand with secondary loss of function of thumb and index finger related to local anesthesia. Also, that the Veteran is right-handed. Id. at 3, 4. Range of motion testing was performed on the Veteran’s left hand. Initial testing of the little finger, for maximum flexion, was 90 degrees at the metacarpophalangeal joint (MCP, large knuckle located where the finger meets the hand); at the proximal interphalangeal joint (PIP, located between the first two bones of the finger), it was 90 degrees; and at the distal interphalangeal joint (DIP, located at the tip of the finger, just before the fingernail starts) it was 70 degrees. For maximum extension, it was 0 degrees at the MCP, the PIP, and DIP. No pain was noted at flexion or extension. Id. at 6. Initial testing for the left ring and long fingers, for flexion, was 90 degrees at the MCP; at the PIP, 100 degrees; and at the DIP, 70 degrees. For extension, it was 0 degrees at the MCP, the PIP, and DIP. No pain was noted at flexion or extension. And there was no gap between the long finger and proximal transverse crease of the hand at flexion. Id. Initial testing for the left index finger, for flexion, was 90 degrees at the MCP and PIP; at the DIP, it was 70 degrees. For extension, it was 0 degrees at the MCP, the PIP, and DIP. No pain was noted at flexion or extension. And there was no gap between the long finger and proximal transverse crease of the hand at flexion. Id. Initial testing for the thumb, for flexion, was 0 degrees at the MCP and interphalangeal joint (IP, located at the tip of the thumb just before the fingernail starts). For extension at the MCP, it was 100 degrees; at the IP, it was 90 degrees. No pain was noted. But a gap of 2.00 centimeters (less than an inch) was noted. Id. Repetitive-use testing for all the fingers of the left hand did not reveal any additional loss of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. Id. at 8. As for repetitive use over time, the examiner noted pain causes functional loss but did not describe the loss in terms of range of motion limitations. The examiner noted “the [Veteran] was unable to replicate the estimated limitation at the time of examination due to its episodic variability.” Id. at 11. Although the examiner did not conduct the range of motion testing during a flare up, the examiner opined that pain causes functional loss. The examiner explained that he could not describe the loss in terms of range of motion limitations. The examiner noted “the [Veteran] was unable to replicate the estimated limitation at the time of examination due to its episodic variability.” The examiner did not comment on frequency, duration, or severity of the flare ups. Id. at 13. The examiner noted there is no ankylosis. Id. at 15. Although the examiner acknowledged the Veteran’s reports of inability to grab things during flare-ups, the VA examiner concluded the Veteran’s left hand disability does not impact his ability to work. The examiner did not provide a rationale for his conclusion. Id. at 19. Similarly, even though the examiner acknowledged a February 25, 1997, radiology report that noted arthritis at the Veteran’s left hand, he concluded that his diagnosis is new, separate, and unrelated to the condition associated with the grant of service-connection for the Veteran’s left-hand disability. He did not provide a rationale for his conclusion. Id. In August 2017, the VA received a private medical assessment from J.M.A., MD., wherein he concludes the Veteran has 50 percent functional use of his left hand. Dr. J.M.A. indicates he is familiar with the Veteran and examined the range of motion limitations of the Veteran’s left hand; Dr. J.M.A. indicates the Veteran has difficulty at flexion and his grip strength half of the strength in his right hand. He did not note any pain on palpitation. See Statement from J.M.A., MD, at 1. Dr. J.M.A. disagrees with the conclusion that the Veteran’s left hand disability is “functioning fine.” The Veteran had reported the VA informed him he did not require VA disability compensation for his left hand disability because it is now functioning fine. Dr. J.M.A. explained that he disagrees because the Veteran has a loss of grip strength. Id. at 2. In November 2020, at Board hearing was conducted for the Veteran’s claims. The Veteran reported that his diagnosed Boxer’s fracture of the left hand had not improved since its onset. Nor before the August 2016 VA disability examination that led to the reduction in evaluation. He reported that the examiner did not thoroughly evaluate his left hand. Instead, he focused more on his back disability. See Transcript dated November 2020 at 4, 6. The Veteran reported he now observes worsening symptoms at his left hand. On top of the pain and numbness he always observed, he now observes a loss of strength in his left hand. He reports that, since his August 2016 VA disability examination, he has noticed greater difficulty gripping things with his left hand. Id. at 3, 5, 8. Turning to the Veteran’s claim for disability compensation, the first issue is determining whether the AOJ complied with the procedural requirements of 38 C.F.R. § 3.105(e). The Board finds that, in this case, those procedural requirements did not apply. This is because the reduction from 30 percent to 0 percent for the Veteran’s left little finger disability (previously evaluated as Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia) did not reduce the total amount of compensation payable; the record reflects the Veteran received $917.13 before and after the reduction. See VAOPGCPREC 71-91 (Nov. 1991). The next issue is whether the substantive requirements under 38 C.F.R. § 3.344(a) and (b) applied when the AOJ reduced the Veteran’s disability rating. The Board finds those requirements applied. The record reflects the Veteran’s disability rating remained at the same level from December 1, 1996, to August 6, 2016; therefore, it was in effect for more than five years, but less than 20 years. So, the substantive requirements under 38 C.F.R. § 3.344(a) and (b) where applicable when the AOJ reduced the Veteran’s disability rating. The next issue is whether all of the substantive requirements under 38 C.F.R. § 3.344 were satisfied. The Board finds all the factors were not satisfied. Even though 3.344 lists five factors that must be satisfied, the relevant factor here is the first one—which requires a “full and complete” disability examination. The Board finds that the August 2016 VA disability examination was not adequate; therefore, it could not serve as the basis of the reduction. When evaluating a musculoskeletal disability, the VA must rely on an examination that adequately elicits evidence about the frequency, severity, duration, or functional loss manifested by the veteran’s flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). What’s more, examiners must make “flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans.” Id. In this case, the examiner affirmed the Veteran experienced functional impairment during flare-ups due to pain but did not portray the extent of the functional impact in terms of degree of additional range of motion loss. Thus, the AOJ relied on an examination that did not adequately portray the state of the Veteran’s left hand disability. 38 C.F.R. §§ 4.40, 4.45. Nor did the examiner explain how he determined that the Veteran’s inability to grasp objects during flare-ups amounted to no impact on his ability to work. A VA examiner’s report must furnish “in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, [a] full description of the effects upon the person’s ordinary activity.” 38 C.F.R. § 4.10. Since the examiner did not provide such a description, the August 2016 VA examination was not adequate to evaluate the Veteran’s left hand disability. For the reasons discussed above, the Board finds the August 2016 VA disability examination was not an adequate basis for fair adjudication. As a result, the AOJ’s decision to reduce the Veteran’s left little finger disability rating from 30 percent to 0 percent was not in compliance with the substantive requirements of 38 C.F.R. § 3.344. And the reduction was not made in accordance with the law. Reinstatement of a pre-reduction rating is the appropriate remedy when the reduction was made without observance of the law. Schafrath, 1 Vet. App. at 596. Thus, the AOJ’s September 2016 rating decision is void from the beginning and the 30 percent rating assigned for Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia, under DC 5222, is restored. Also, it is now in effect from September 1997 through the present. REASONS FOR REMAND Entitlement to an increased disability rating for Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia is remanded. The Veteran contends his Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia (left hand disability) has worsened since his last VA disability examination. He claims, since August 2016, he has observed a loss of strength in his left hand which results in greater difficulty gripping things. See Hearing Transcript dated November 2020 at 3, 5. This increased rating claim must be remanded for a new VA disability examination before the Board can decide on the merits. This is because the disability examination of record is not adequate to evaluate the Veteran’s claim. And the Veteran has claimed his disability has worsened since his last disability examination. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). The duty to assist also requires VA to provide a contemporaneous medical examination when the Veteran asserts or the evidence indicates that the disability has worsened since the last VA examination or the record does not adequately reveal the current state of the disability. Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). To trigger the need for a new examination, there must at least be an allegation that the claimant’s condition has worsened. Id. Beginning with the Veteran’s increased rating claim for his service-connected left hand disability, on June 29, 2016, the VA received an increased rating claim seeking a greater than 30 percent disability rating. The AOJ responded by providing the Veteran a VA disability examination on August 6, 2016 and then issuing the September 2016 rating decision and January 2017 SOC on appeal. Those decisions considered whether the reduction in disability rating for the Veteran’s left hand disability was proper. Also, whether an increased disability rating was warranted for his left thumb, index, and little finger based on the August 2026 VA disability examination. Then, during the November 2020 Board hearing, the Veteran alleged his left hand disability had worsened since his August 2016 VA disability examination. The Veteran did not specify which finger(s) of the length hand were associated with the loss of strength. See Hearing Transcript dated November 2020 at 3, 5. Turning to the Veteran’s claim for disability compensation, the issue is whether the Board can grant an increased rating for the Veteran’s left hand disability. Since the Board has already found the August 2016 VA disability examination inadequate, the Board cannot decide on the Veteran’s claim before his last VA disability examination. Also, there is no disability examination on record that has evaluated the Veteran’s claims of worsening symptoms since his last VA disability examination. So, a new VA disability examination is warranted. Palczewski, 21 Vet. App. at 182-83. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected Boxer’s fracture of the left hand with secondary loss of function of thumb and index finger related to local anesthesia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the   record (additional facts are required), or the examiner (does not have the knowledge or training). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.