Citation Nr: 21004182 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-25 073 DATE: January 26, 2021 ORDER A 20 percent disability rating for the Veteran’s right wrist disability is restored, effective July 1, 2014. A 10 percent disability rating for the Veteran’s right wrist scar is restored, effective July 1, 2014. A 20 percent rating, but no higher, for the Veteran’s right wrist, right hand, and right hip scars is granted prior to September 17, 2013. A rating in excess of 20 percent for the Veteran’s right wrist, right hand, and right hip scars since September 17, 2013 is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for the Veteran’s right wrist disability is remanded. FINDINGS OF FACT 1. It is not established that there was actual improvement in the Veteran’s right wrist disability that is reasonably certain to be maintained under the ordinary conditions of life and work to warrant a reduction from 20 percent to 0 percent, effective July 1, 2014. 2. It is not established that there was actual improvement in the Veteran’s right wrist scar that is reasonably certain to be maintained under the ordinary conditions of life and work to warrant a reduction from 10 percent to 0 percent, effective July 1, 2014. 3. For the entire appeal period since February 13, 2013, the Veteran has had three painful scars. CONCLUSIONS OF LAW 1. The reduction of the 20 percent disability rating for a right wrist disability was not proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5211, 5214, 5215. 2. The criteria for a 20 percent disability rating, but no higher, for the Veteran’s right wrist, right hand, and right hip scars have been met prior to September 17, 2013. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.59, 4.71a, Diagnostic Code 7804. 3. The criteria for a disability rating in excess of 20 percent for the Veteran’s right wrist, right hand, and right hip scars have not been met since September 17, 2013. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.59, 4.71a, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from November 1984 to October 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which, in pertinent part, reduced the Veteran’s disability ratings for his service-connected right wrist disability from 20 percent to 0 percent and right wrist scars from 10 percent to 0 percent, effective July 1, 2014. The Veteran timely appealed. In April 2017, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing. A copy of the hearing transcript is of record. The Board remanded the issues in November 2018 for the issuance of a Supplemental Statement of the Case (SSOC) in accordance with 38 C.F.R. § 19.37(b), 20.1304(c). The SSOC was issued in June 2020. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, however, while it has been documented that the Veteran’s right wrist disability has caused some functional impairment, to include with employability, the record shows that he is still employed. As such, Rice is inapplicable to this case and need not be further addressed. Rating Reductions Pursuant to 38 C.F.R. § 3.105(e) where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a 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. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation 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. 38 C.F.R. § 3.105(e). Specific requirements must be met for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. at 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344 (a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). However, for other disabilities that are likely to improve, that is, disabilities for which a rating has been in effect for less than five years, re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); 38 C.F.R. § 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer at 281-82. However, post-reduction evidence may not be used to justify an improper reduction. 1. A 20 percent disability rating for the Veteran’s right wrist disability is restored, effective July 1, 2014. The Veteran maintains that the reduction of his disability rating from 20 percent to 0 percent for his right wrist disability, effective July 1, 2014, was improper and that the 20 percent rating should be restored. As an initial matter, the Veteran was provided appropriate notice of the proposed reduction and was given 60 days for the presentation of additional evidence prior to the reduction under 38 C.F.R. § 3.105(e), as demonstrated by the December 2013 rating decision and December 2013 notice of that rating decision. He was given opportunity to contest the reduction in rating, including having a hearing on the matter. The 20 percent disability rating for the Veteran’s right wrist disability was awarded in a January 2010 rating decision, with an effective date of November 2, 2009. As the disability rating had not been in effect for five years at the time that the reduction became effective on July 1, 2014, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply in this case, and the evaluation can be reduced on re-examination demonstrating improvement in the disability. 38 C.F.R. § 3.344 (c). The Board finds that the evidence does not show that any demonstrated “improvement” in the Veteran’s right wrist disability actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The Board acknowledges the December 2013 VA examination report documenting palmar flexion to 70 degrees and dorsiflexion (extension) to 50 degrees, both without objective evidence of painful motion. These findings are commensurate with a 0 percent disability rating under Diagnostic Code 5215 which evaluates the limitation of motion of the wrist. However, the Board also observes the examiner’s findings that the disability continued to adversely impact the Veteran’s ability to work, as he could not carry multiple lunch trays with his right hand/wrist alone, nor could he take on multiple, heavy loads singlehandedly, limitations that were detailed in prior examinations and lay statements. Thus, while the results of the December 2013 examination show that he did not have compensable limitation of motion of the right wrist, the reduction in the Veteran’s disability rating for his right wrist disability from 20 percent to 0 percent was not warranted, as there was no demonstrated improvement of the Veteran’s ability to function under the ordinary conditions of life and work. Accordingly, the 20 percent disability rating for the Veteran’s right wrist disability is restored effective the date of the reduction. 2. A 10 percent disability rating the Veteran’s right wrist scar is restored, effective July 1, 2014. The Veteran maintains that the reduction of his disability rating from 10 percent to 0 percent for his right wrist scar, effective July 1, 2014, was improper and that the 10 percent rating should be restored. As an initial matter, the Veteran was provided appropriate notice of the proposed reduction and was given 60 days for the presentation of additional evidence prior to the reduction under 38 C.F.R. § 3.105(e), as demonstrated by the December 2013 rating decision and December 2013 notice of that rating decision. He was given opportunity to contest the reduction in rating, including having a hearing on the matter. The 10 percent disability rating was awarded in a March 1998 rating decision, with an effective date of October 16, 1997. Thus, at the time of the reduction, the rating had been in effect for more than five years and the provisions of 38 C.F.R. § 3.344 (a) and (b) apply. To reiterate, these provisions indicate that a reduction in rating is warranted if medical evidence discloses that there has been sustained material improvement in the condition and it is reasonably certain that the improvement will be maintained under the ordinary conditions of life. The record of examination and the medical-industrial history should be reviewed to ascertain whether the recent examinations to reduce the evaluations are full and complete, including all special examinations indicated as a result of general examination, and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Furthermore, ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344 (a). See also 4.1, 4.2, 4.13 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Brown, 5 Vet. App. at 420-22. Therefore, in the absence of evidence of sustained, material improvement, the rating for the disability rating for the Veteran’s right wrist scar cannot be reduced. 38 C.F.R. § 3.344 (a). The Board finds that the evidence does not show that any demonstrated “improvement” in the Veteran’s right wrist disability actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Here, while the December 2013 VA examiner found that the Veteran’s right wrist scar was “well-healed,” a private treatment record from the following month documents the scar was painful and tender. Further, the VA examiner does not indicate there is actual improvement in the Veteran’s right wrist scar, nor does he indicate change in the function of the Veteran’s right wrist scar from prior examinations. Post-service treatment records to the present continue to document complaints of and treatment for right wrist scar pain. The Board finds that the Veteran is competent to describe the symptoms of his scar, including pain, and finds that his statements of record are credible. Thus, while the results of the December 2013 examination show the scar was “well-healed,” the reduction in the Veteran’s disability rating for his right wrist scar from 10 percent to 0 percent was not warranted, as there was no demonstrated sustained, material improvement of condition combined with reasonable certainty that the improvement will be maintained under the ordinary conditions of life. Accordingly, the 10 percent disability rating for the Veteran’s right wrist scar is restored effective the date of the reduction. 3. A disability rating in excess of 20 percent for the Veteran’s right wrist, right hand, and right hip scars is denied. The Veteran seeks a rating in excess of 20 percent for his service-connected right wrist, right hand, and right hip scars, currently rated under Diagnostic Code 7804. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and a maximum 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Id. at Note (1). An additional 10 percent may be added if a scar is both unstable and painful. Id. at Note (2). The Board finds that for the entire appeal period (since the Veteran filed his increased rating claim on February 13, 2013), the Veteran has had three painful scars. Therefore, a 20 percent rating, but no higher, under Diagnostic Code 7804 for the Veteran’s right wrist, right hand, and right hip scars is warranted prior to September 17, 2013. However, the Board finds that a rating in excess of 20 percent under Diagnostic Code 7804 for the Veteran’s right wrist, right hand, and right hip scars is not warranted for the entire period on appeal. To warrant a 30 percent rating, the evidence must show five or more scars that are unstable or three or four scars that are unstable or painful with at least one being both painful and unstable. Here, the Veteran currently has only has three service-connected scars that are reportedly painful and of those scars none are unstable. Therefore, a rating in excess of 20 percent is not warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for the Veteran’s right wrist disability is remanded. The Board has restored the Veteran’s 20 percent disability rating for the Veteran’s right wrist disability herein. At issue is whether a still higher disability rating is warranted. Following the December 2013 VA examination, which was the basis of the aforementioned reduction, the Veteran’s right wrist disability was evaluated solely based on limitation of motion of the wrist. The maximum disability rating awarded for limitation of motion under Diagnostic Code 5215 is 10 percent. While Diagnostic Code 5214, which also governs the wrist, provides for higher ratings, there must be findings of ankylosis for that code to apply, and the record is absent of such findings. However, imaging studies performed over the course of the appeal consistently reflect symptomatology in the Veteran’s ulna impacting his right wrist. Most recently, a May 2018 X-ray report documents the following: “ulnar positive variance is noted with probable impaction upon the triangular fibrocartilage. Fragmented ulnar styloid fracture is noted. These fragments are corticated suggesting remote injury. There is narrowing of the radiocarpal joint.” As the assignment of a Diagnostic Code is “completely dependent on the facts of a particular case,” the Board has the authority to determine the appropriate Diagnostic Code to use in this case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). As the evidence indicates that an evaluation based on Diagnostic Code 5211 may be warranted and may elicit an even higher evaluation for the Veteran, the Board finds that additional development must be undertaken. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran. All obtained records should be associated with the evidentiary record. 2. Schedule the Veteran for an examination to determine the nature and severity of all pathology and symptoms associated with his service-connected right wrist disability. Provide access to the Veteran’s claims file to the examiner for review in connection with the examination. All necessary tests and studies should be conducted, to include x-rays, if deemed necessary by the examiner. The examiner should specifically describe the pathology associated with the Veteran’s service-connected right wrist disability, to include indicating whether there is malunion of the ulna with bad alignment, nonunion of the ulna in the lower or upper half, or loss of bone substance or deformity. The examiner should also specifically delineate all associated symptoms, specifically to including any limitation of motion or function of the right wrist. 3. The RO should then readjudicate the claim, considering whether separate ratings are warranted for any separate manifestations of the disability which are not duplicative or overlapping. If the benefits sought on appeal remain denied, a supplemental statement of the case must be provided to the Veteran. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.