Citation Nr: 21062959 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-50 610 DATE: October 12, 2021 ORDER The 30 percent for right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair (previously recurrent instability and partial-thickness rotator cuff tear, right shoulder, with degenerative joint disease (DJD) is restored, effective March 03, 2017. REMANDED Entitlement to a rating greater than 30 percent for right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair is remanded. FINDING OF FACT At the time of the March 2017 reduction of the disability rating from 30 percent to 20 percent, effective March 03, 2017, the RO did not consider or make findings of whether the evidence shows within a reasonable certainty that the material improvement found will be maintained under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 30 percent disability rating for service-connected right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair, effective March 03, 2017, are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.71a, Diagnostic Code 5010-5201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1990 to February 1997. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse, T. S., testified at a Board hearing in June 2021 before the undersigned Veterans Law Judge (VLJ). The record was held open for 60 days for the submission of additional evidence. A copy of the transcript is of record. Generally, the propriety of a rating reduction is a separate issue from a claim for an increased evaluation. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("This is a rating reduction case, not a rating increase case."). However, in the case at hand, in response to the Veteran's notice of disagreement (NOD) with the March 2017 rating decision, which reduced his disability rating for right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair, the RO issued an October 2018 Statement of the Case (SOC) that adjudicated his claim as if it was one for an increased rating. By treating a claim as if it is part of a timely filed substantive appeal, VA effectively waives all objections to the procedural adequacy of the appeal concerning that issue. Percy v. Shinseki, 23 Vet. App. 37, 46, (2009). The Board finds that the RO led the Veteran to believe that the issue of entitlement to an increased rating for right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair was on appeal and has, therefore, taken jurisdiction of the issue. The Board also notes that although the issue of the propriety of the reduction in the evaluation assigned for the Veteran's right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair was certified to the Board, it was not specifically addressed in the October 2018 SOC. However, in light of the fully favorable determination below, the Board finds that there is no prejudice to the Veteran in proceeding with the adjudication of this issue. As a preliminary matter, specific notice requirements apply to a reduction in rating when the reduction results in a change in the number of benefits received. The procedural safeguards afforded to claimants in a reduction case are set forth under 38 C.F.R. § 3.105 (e) and are required to be followed by VA before issuing any final rating reduction. Brown v. Brown, 5 Vet. App. 413, 418 (1993). The RO, in the March 2017 rating decision, implemented the rating reduction of the Veteran's right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair from 30 percent to 20 percent, effective March 03, 2017. The RO did not issue a proposed rating decision or provide the Veteran with advance notice of the reduction. As the Veteran's overall compensation was not affected by the rating reduction for his right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair. Before and after the March 2017 rating decision implementing the reduction, his combined disability rating was 50 percent, effective from June 13, 2001 (except for the two periods of 100 percent for convalescence from April 18, 2012, to July 31, 2012, and September 13, 2013, to October 31, 2013). As there was not a reduction in the Veteran's overall disability compensation, the provisions of 38 C.F.R. § 3.105 are not applicable. 38 C.F.R. § 3.105 (e); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days' notice before making a disability rating decision effective if the decision did not reduce the overall compensation paid to the Veteran); VAOPGCPREC 71-91 (November 07, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply). Accordingly, the Board finds that there was no error in the RO's notification procedures concerning the reduction. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Before reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown, 5 Vet. App. 413, 420 (1993). Such a review requires that in any rating reduction case, VA determination must be (1) based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (citing Brown, 5 Vet. App. at 421). It is essential, both in the examination and in the evaluation of the disability, that each disability is viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail or the diagnosis is not supported by the findings of the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in the thoroughness of the examinations or use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Other provisions regarding reductions include 38 C.F.R. § 3.344 (a) and 38 C.F.R. § 3.344 (b), which provide greater protection to recipients of disability ratings that have continued for five years or more. 38 C.F.R. § 3.344 (c). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 3.344 (c) as providing heightened protections to ratings that have continued for long periods at the same level (5 years or more). Thus, the rating must have existed at the same percentage for at least five years. Simon v. Wilkie, 30 Vet. App. 403 (2018). The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. 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 warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement may be reflected, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. The circumstances on which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by VA. Dofflemyer, 2 Vet. App. 277, 280 (1992). 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 evaluating whether the disability had demonstrated actual improvement. Id. Here, upon a review of the evidence, the Veteran's disability had been service connected since February 05, 1997, and the evaluation of 30 percent had been in effect from June 13, 2001, to March 03, 2017, more than five years. Thus, the provision of 38 C.F.R. §§ 3.344 (a) and (b) are applicable. In March 2017, the Veteran was afforded an in-person Shoulder & Arms Conditions examination. The examiner noted that the Veteran exhibited abnormal or outside the normal range of motion (ROM) of the right shoulder. His ROM testing revealed flexion of 0 to 100 degrees, abduction of 0 to 85 degrees, external rotation of 0 to 45 degrees, and internal 0 to 30 degrees. Ankylosis was not noted. (A second VA Shoulder & Arms Conditions examination revealed ROM testing with flexion of 0 to 100 degrees, abduction of 0 to 100 degrees, external rotation of 0 to 60 degrees, and internal 0 to 60 degrees.) The March 2017 VA rating decision that effectuated the reduction noted that the evidence of record, specifically the March 2017 VA examination showed the limited motion of the arm at shoulder level and painful motion of the shoulder, did not warrant a 30 percent evaluation. The rating decision, however, neglected to address the provisions of 38 C.F.R. § 3.344 and the RO limited it's discussion to explaining why the 20 percent rating was assigned. There was no discussion of whether the VA examination of March 2017 was as full and complete as the examination on which the 30 percent rating was established and whether there was a showing that the Veteran's right shoulder disorder sustained material improvement. Moreover, the RO failed to address whether all the evidence used in the determination of the reduction demonstrated an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Based on the above, the Board finds that the reduction in rating from 30 percent to 20 percent, effective March 03, 2017, was improper for the provisions of 38 C.F.R. § 3.344 were not considered. The decision to reduce the benefit was not in accordance with the law, in part, because the RO failed to make a finding that the VA examination used as a basis for the reduction was as full and complete; nor were there findings that it was reasonably certain that any material improvement found would be maintained under the ordinary conditions of life and work. Rather, the RO noted that the evidentiary record showed improvement of the Veteran's disability, and a 30 percent evaluation was not currently warranted without any further explanation or assessment of the VA examinations or the additional evidence presented. The 30 percent rating is, thus, restored as though the reduction had not happened. 38 C.F.R. § 3.344 (a), (b); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown, 5 Vet. App. at 413 (1993). REASONS FOR REMAND Entitlement to a rating greater than 30 percent for right shoulder glenohumeral and acromioclavicular joint osteoarthritis status post rotator cuff repair is remanded. During his Board hearing, the Veteran challenged the adequacy of the VA examinations. The Veteran testified that his examiners did not do a proper job, and he was not treated right. Furthermore, his right arm had worsened or was in the same condition as when he was first evaluated (many years ago), and he needed assistance from his wife presently, to tie his shoes, get dressed. He also testified to the possibility of having a shoulder replacement. As the Veteran related that his disability has worsened, a contemporaneous VA examination is warranted. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); 38 C.F.R. § 3.326 (a). A new examination is, therefore, requested. Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding treatment records. 2. Schedule the Veteran for an examination to determine the severity of his right shoulder disability. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner's attention to the June 2021 Board hearing testimony. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran's flare ups or ask him to describe the additional functional loss, if any, he has during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record, including the Veteran's lay information, or explain why he or she cannot do so. It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examined during a flare up. The examiner must provide all findings, along with a complete rationale for any opinions provided. 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.