Citation Nr: 21061944 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-58 880 DATE: October 5, 2021 ORDER Restoration of a 40 percent rating for service-connected left lower extremity radiculopathy, effective December 1, 2016, is denied. REMANDED Entitlement to service connection for varicocele, only as secondary to medications for service-connected intervertebral disc degeneration of the thoracolumbar spine (lumbar spine IVDS), is remanded. Entitlement to service connection for hypogonadism, only as secondary to medications for service-connected lumbar spine IVDS, is remanded. Entitlement to service connection for sperm disorders, including oligoasthenospermia, teratospermia, and asthenospermia, only as secondary to medications for service-connected lumbar spine IVDS, is remanded. Service connection for muscle weakness or impairment only as secondary to the service-connected left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. FINDING OF FACT The Veteran's left lower extremity radiculopathy showed actual improvement in disability and in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 40 percent rating for service-connected left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1997 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. 1. Entitlement to restoration of a 40 percent rating for service-connected eft lower extremity radiculopathy is denied. The Veteran contends that his evaluation should not have been reduced because his left lower extremity radiculopathy had not improved at any point during the appeal period. See Hearing Transcript (February 2021). The Board concludes that that the criteria for restoration of a 40 percent rating for left lower extremity radiculopathy are not met as the evidence of record shows an actual improvement in the disability, under the ordinary conditions of life and work. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.124a, Diagnostic Code 5620. A January 2008 rating decision granted service connection for left lower extremity radiculopathy and assigned a 10 percent evaluation, under DC 8620, effective September 6, 2007. See Rating Decision (January 2008). Thereafter, a May 2014 rating decision granted a 40 percent rating under DC 8620, effective August 5, 2013, the date the Veteran filed a claim for increase. See Rating Decision (May 2014). In December 2015, the Veteran filed a claim for increased evaluation. See VA 21-526EZ, Fully Developed Claim (Compensation)). An examination was conducted, and a February 2016 rating decision proposed reducing the rating to 10 percent. See Rating Decision (February 2016). A September 2016 rating decision effectuated the proposed reduction and reduced the Veteran's rating to 20 percent, effective December 1, 2016. See Rating Decision (September 2016). The Board notes that this appeal has been adjudicated as a claim regarding the propriety of the reduction in evaluation, not as an increased evaluation claim. See Rating Decision (February 2016); Rating Decision (September 2016); Statement of the Case (September 2017); Hearing Transcript (February 2021). Accordingly, the claim is for restoration and not one for an increased evaluation. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (noting that rating reduction cases are separate from rating increase cases). When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the agency of original jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, when 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, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. A veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons for the action. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). 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 a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. The Board finds that the procedural requirements of § 3.105 were satisfied in this appeal. In a February 2016 letter, the RO notified the Veteran of the proposed reduction in benefits and his due process rights to include that no action would be taken on the proposed reduction for 60 days following the date of the notification letter, and that he should provide evidence showing that the proposed reduction is not warranted. See Notification Letter (February 2016). The Veteran requested a personal hearing and then modified that request to an informal conference. See Correspondence (March 2016); VA 21-4138 Statement in Support of Claim (August 2016). An informal conference was conducted in August 2016. See Correspondence (August 2016). A September 2016 rating decision effectuated the proposed reduction by assigning a 20 percent rating, effective December 1, 2016. The Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) to include the effective date of the reduction which allowed a 60-day period to expire before assigning the reduction effective date. See 38 C.F.R. § 3.105 (e). The procedural requirements are met. As to the substantive requirements, where an evaluation has been in effect for less than 5 years, special consideration is not provided and a reexamination disclosing improvement, physical or mental, warrants a reduction in rating. 38 C.F.R. § 3.344(c). Here, the 40 percent rating was in effect from August 5, 2013 to December 1, 2016, which is less than five years. Thus, special consideration is not for application. The circumstances under which rating reductions can occur are limited. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). In any rating reduction case it must be ascertained, based upon a review of the entire recorded history of the disorder, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Brown v. Brown, 5 Vet. App. 413, 420 (1993). It must be determined 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. Faust v. West, 13 Vet. App. 342, 350 (2000). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). 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. 38 C.F.R. § 3.344(a), (b); Kitchens, 7 Vet. App. 320; Brown, 5 Vet. App. at 419. 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, 2 Vet. App. at 281-82. For the sciatic nerve, moderately severe incomplete paralysis is assigned a 40 percent evaluation and a 20 percent evaluation is assigned for a moderate incomplete paralysis. 38 C.F.R. § 4.124a, DC 8520. Here, the 40 percent evaluation was based on an April 2014 VA examination. That examination found normal left lower extremity strength without muscle atrophy. Gait and posture were within normal limits. There were, however, absent reflexes at the knee and ankle, and absent sensation in the left foot and toes, with normal sensation in the rest of the left lower extremity. There was a positive straight leg raise test on the left. The Veteran reported no constant pain, moderate intermittent pain, and severe paresthesias and/or dysesthesias and numbness. The examiner found that the sciatic radiculopathy was severe. See C&P Exam (May 2014). After the Veteran filed a claim for an increased evaluation, a January 2016 VA examination was conducted. See C&P Exam (February 2016). The Veteran reported numbness of the lower leg. Upon testing, there was 5/5 strength of the left lower extremity. There was no muscle atrophy, normal reflexes, and normal sensation. The straight leg raise test was negative. The Veteran reported there was no constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner found moderate radiculopathy. See C&P Exam (February 2016). After the informal conference requested by the Veteran, a September 2016 VA examination was conducted. See C&P Exam (September 2016). The Veteran reported tingling and shooting pain that radiated down his left lower extremity. He also reported moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner found reduced ankle dorsiflexion strength, but full ankle plantar flexion and knee extension strength. There were normal reflexes of the knee and ankle, but decreased sensation of the lower leg and ankle, foot, and toes. There were no trophic changes. There was a mildly antalgic gait due to low back pain. There was muscle atrophy of the upper thigh and the calf. Finally, the examiner found there was moderate incomplete paralysis of the sciatic nerve, external popliteal or common peroneal nerve, musculocutaneous or superficial personal nerve, anterior tibial, internal popliteal, and posterior tibial nerve. The examiner noted that EMG studies of the left lower extremity done in May 2016 showed chronic severe incomplete left common peroneal nerve and no evidence of sciatic nerve lesion or lumbosacral radiculopathy. See C&P Exam (September 2016). A May 2017 VA lumbar spine examination was conducted. Objective findings included normal sensation except decreased sensation at the foot/toes. There was a positive straight leg raise test. Examination showed no muscle atrophy and full strength, except 4/5 strength at the ankle and great toe. There was mild constant pain, paresthesias, dysesthesias, and numbness, and moderate intermittent pain. The left sciatic radiculopathy was mild. In a September 2017 VA right lower extremity peripheral neuropathy examination, the findings included normal strength of the left lower extremity, normal reflexes, and normal sensation. The Veteran's gait was normal, and the radiculopathy was mild. A November 2018 examination report from a private physician, P. Ellis, noted left lower extremity radiculopathy was significant with marked weakness and decreased sensation. The Board finds that restoration of the 40 percent evaluation is not warranted. First, the 2016 VA examinations were thorough, obtained all relevant testing and information, and are at least as full and complete as the 2014 VA examination. Second, both 2016 VA examinations showed actual improvement of the left lower extremity radiculopathy since the 2014 VA examination. Notably, the 2016 VA examiners characterized the Veteran's radiculopathy as moderate, rather than severe, as was noted in the 2014 VA examination report. Additionally, in 2014, reflexes were absent at the knee and ankle and sensation was absent in the feet and toes. However, in 2016, reflexes were normal, and sensation was either normal or decreased in one area, but not absent. Post-reduction reports also support an actual improvement in the disability. In the 2017 VA examinations, there was only slightly reduced sensation and slightly reduced strength. The Veteran's radiculopathy was characterized as mild. Although a 2018 private examination report noted significant radiculopathy, this examination was conducted almost two years later, and the Board finds that it did not include any retrospective findings. See Dofflemyer, 2 Vet. App. at 281-282. As for the Veteran's reports of pain, in 2014, he reported no constant pain, moderate intermittent pain, and severe paresthesias and/or dysesthesias and numbness. In January 2016, he again reported no constant pain and moderate intermittent pain, but also reported mild paresthesias and/or dysesthesias, and mild numbness. In September 2016, the Veteran reported moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. Although the pain reported in September 2016 was worse than in January 2016, the pain was characterized as moderate, rather than severe as in 2014. Although the Veteran reported at his Board hearing that his radiculopathy had not improved at any point during the appeal period, these competent reports are outweighed by the findings of the examiners when coupled with the Veteran's own reports at the VA examinations. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Veteran's statements at the VA examinations are assigned more significant probative value because they were not made based on attempting to recollect his symptoms years prior; rather they were made while he was experiencing the symptoms and are consistent with the objective findings at those examinations. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Finally, the evidence reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Of note, where there had been no muscle atrophy in 2014, there was atrophy in the left lower extremity in the September 2016 VA examination. But the 2017 VA examination again showed no muscle atrophy. Additionally, the remainder of the evidence shows an improvement in both sensation and reflexes. In 2016, the Veteran's reports of tingling in the feet and numbness were mild and moderate, rather than severe. Taken together, a return of sensation and reflexes, and a reduction in tingling, numbness, and pain, in an extremity used in ambulation is an improvement in functional ability. Accordingly, the Board finds restoration of the 40 percent evaluation for the Veteran's service-connected left lower extremity radiculopathy is not warranted. The Board notes that the Veteran contends that his left lower extremity radiculopathy should be evaluated under a different diagnostic code for peroneal nerve paralysis, or that two evaluations are for assignment. See Hearing Transcript (February 2021). The VA medical records and the September 2016 VA examination show evidence of chronic severe but incomplete left common peroneal nerve lesion at the fibular head. See VA Examination (September 2016). Additionally, the September 2016 VA examiner found there was paralysis of the sciatic nerve, external popliteal or common peroneal nerve, musculocutaneous or superficial personal nerve, anterior tibial, internal popliteal, and posterior tibial nerve. See VA Examination (September 2016). But it isn't clear if those nerves are part of the service-connected disability and whether two evaluations are warranted is an argument for an increased evaluation and is not part-and-parcel of this claim of entitlement to restoration. Rating reduction cases are separate from rating increase cases. Peyton, 1 Vet. App. at 286. Accordingly, this issue is not addressed herein. Given the above, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for varicocele, only as secondary to medications for service-connected lumbar spine IVDS, is remanded. 2. Entitlement to service connection for hypogonadism, only as secondary to medications for service-connected lumbar spine IVDS, is remanded. 3. Entitlement to service connection for sperm disorders, including oligoasthenospermia, teratospermia, and asthenospermia, only as secondary to medications for service-connected lumbar spine IVDS, is remanded. The Veteran asserts that his varicocele, hypogonadism, and sperm disorders were caused or aggravated by medications taken for his service-connected lumbar spine IVDS. See Hearing Transcript (February 2021). At the Board hearing, he and his attorney clarified that these disorders were not claimed as related to service. See Hearing Transcript (February 2021). The Board finds that remand is required for addendum opinions. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Here, a VA examiner opined that each of the disorders was not proximately due to ibuprofen taken for the service-connected lumbar spine IVDS. See C&P Exam (January 2020). The examiner did not, however, address aggravation. The Board notes that a private physician, Dr. Ellis, opined that the Veteran's oligospermia was caused by ibuprofen taken for his service-connected back injury. See Medical Treatment Record Non-Government Facility (November 2018). Because no supporting explanation was supplied, this opinion lacks probative value and is essentially insufficient upon which to grant service connection. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. Entitlement to service connection for muscle impairment of the left lower extremity only as secondary to service-connected left lower extremity radiculopathy. The Veteran contends that he has nerve impairment due to his service-connected radiculopathy, that has caused muscle impairment, to include atrophy. See Hearing Transcript (February 2021). The Board finds that remand is warranted to obtain medical records in the possession of VA and for an examination. First, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). In various VA medical records, to include those dated in January 2018, February 2018, May 2018, June 2018, and August 2018, it is noted that private medical records for pain management for Dr. Shahid are scanned into VistA Imaging. Unfortunately, the Board does not have access to VistA Imaging and those records must be separately associated with the claims file. Second, where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A May 2017 VA examination was conducted. See C&P Exam (May 2017). The examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition because there was no confirmed diagnosis of muscle atrophy. See C&P Exam (May 2017). Although the examiner noted review of the claims file, the examiner did not address notations of atrophy in VA treatment records and at VA examinations. See C&P Exam (September 2016); CAPRI (June 2019). A later VA examination found there was no muscle atrophy, but then noted the left calf measured smaller than the right. See C&P Exam (May 2017). These findings must be clarified on remand. 5. Entitlement to a rating in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. The Veteran contends that he has numbness and weakness of the right lower extremity. See Hearing Transcript (February 2021). The Board finds that remand is warranted to obtain medical records in the possession of VA. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records. 38 C.F.R. § 3.159(c)(2). In various VA medical records, to include those dated in January 2018, February 2018, May 2018, June 2018, and August 2018, it is noted that private medical records for pain management for Dr. Shahid are scanned into VistA Imaging. Unfortunately, the Board does not have access to VistA Imaging and those records must be separately associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2019 to the Present. Additionally, obtain and associate with the claims file, records located in VistA Imaging, to include any pain management records or records from Dr. Shahid. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs or symptoms of the claimed conditions to include Dr. Shahid. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for left lower extremity muscle impairment. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with muscle impairment. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: (a) Whether there is any left lower extremity muscle impairment or muscle atrophy. Address notations of muscle atrophy in the record. (b) Whether any left lower extremity muscle impairment or muscle atrophy is at least as likely as not (1) proximately due to service-connected left lower extremity radiculopathy, or (2) aggravated beyond its natural progression by service-connected left lower extremity radiculopathy. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. 4. Obtain opinions regarding the claimed varicoceles, hypogonadism, and other sperm disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the claimed varicoceles, hypogonadism, and other sperm disorders. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Whether (a) varicoceles, (b) hypogonadism, and/or (c) other sperm disorders is at least as likely as not (1) proximately due to medication taken for the service-connected lumbar spine IVDS, or (2) aggravated beyond its natural progression by medications taken for service-connected lumbar spine IVDS. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. 5. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.