Citation Nr: 21064571 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-24 480 DATE: October 20, 2021 ORDER Reduction of the rating for service-connected residuals of a left ankle fracture, status post fusion with complex regional pain syndrome and union arthrodesis, from 30 percent to 20 percent was improper; therefore, restoration of the 30 percent rating for the period of May 1, 2015, to August 26, 2015, is granted. Entitlement to an earlier effective date of December 1, 2014, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record at the time of the February 2015 rating decision does not show improvement, including under the conditions of ordinary life, in the Veteran's service-connected residuals of a left ankle fracture, status post fusion with complex regional pain syndrome and union arthrodesis 2. On May 19, 2014, VA received an informal claim for entitlement to a TDIU. In a September 2014 rating decision, the RO denied the Veteran's claim for a TDIU. Subsequent to being notified of the denial of his claim, the Veteran submitted new evidence in September 2015, which was received within a year of the September 2014 rating decision. 3. In December 2016, the Veteran filed a claim for entitlement to a TDIU. In a July 2017 rating decision, the RO granted entitlement to a TDIU, effective in December 2016. In a December 2019 rating decision, the RO changed the effective date to September 1, 2016. CONCLUSIONS OF LAW 1. Restoration of the 30 percent rating for service-connected residuals of a left ankle fracture, status post fusion with complex regional pain syndrome and union arthrodesis, is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5270. 2. The criteria for an earlier effective date of December 1, 2014, for the grant of entitlement to a TDIU have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1993 to August 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions in February 2015 and July 2017 by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in January 2020. A transcript of the hearing is associated with the Veteran's claims folder. 1. Reduction of the rating for service-connected residuals of a left ankle fracture, status post fusion with complex regional pain syndrome and union arthrodesis, from 30 percent to 20 percent was improper; therefore, the 30 percent rating is restored for the period of May 1, 2015, to August 26, 2015. The Veteran asserts that the rating reduction of his service-connected residuals of a left ankle fracture, status post fusion with complex regional pain syndrome and union arthrodesis (herein left ankle disability) was improper, and therefore, his 30 percent rating should be restored. At the outset, the Board notes that the reduction was predicated on a violation of the amputation rule under 38 C.F.R. § 4.68, which states that the combined evaluation for disabilities of an extremity shall not exceed the evaluation for the amputation at the elective level, were amputation to be performed. While a rating reduction may be effectuated based on failing to correctly apply statutory or regulatory provisions, there must be a showing of clear and unmistakable error in a previous finally adjudicated decision. See 38 C.F.R. § 3.105(a)(1)(i). Here, no such showing was made. Indeed, the March 2018 statement of the case makes no reference to "clear and unmistakable error" or to a previously adjudicated decision. As such, the Board finds that it does not have jurisdiction to consider the issue of "clear and unmistakable error" in a previous decision. A veteran's disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA 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. Thus, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). At the time of the February 2015 rating decision, the Veteran was service connected for a left ankle disability, rated at 30 percent disabling under 38 C.F.R. § 4.71A, Diagnostic Code 5270. Under Diagnostic Code 5270, a 30 percent rating is warranted where there is ankle ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees. The 30 percent rating was established on December 1, 2014, and was in effect for less than five years at the time of the reduction. As the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(c), are applicable. Prior to the proposed reduction, the Veteran was afforded a VA ankle conditions examination in September 2014. The examiner noted that the Veteran presented with a cam walker boot, crutches, and a non-weight bearing order, which prevented physical examination. (9/16/2014, C&P Exam, p. 2). In February 2015, prior to the February 2015 rating decision which effectuated the reduction, the Veteran was afforded another VA ankle conditions examination. The examiner noted that the left ankle is fused and was not capable of motion. The examiner indicated that there was left ankle ankylosis in good weight bearing position. (2/24/2015, C&P Exam, p. 3, 6). Based on the aforementioned, the Board finds that the evidence of record at the time of the February 2015 rating decision did not show actual improvement in the Veteran's ankle disability. Accordingly, restoration of the 30 percent rating for the Veteran's left ankle disability is warranted. 2. Entitlement to an earlier effective date of December 1, 2014, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran asserts that he is entitled to an earlier effective date for the grant of a TDIU, which is currently effective as of September 1, 2016. New and material evidence received prior to the expiration of the appeal period (one year for a rating decision and 60 days for a statement of the case) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). To comply with the directive of 38 C.F.R. § 3.156(b) VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 367. Until VA has evaluated the relevancy of the new evidence, the initial claim remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1407. Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). In the present case, the record indicates that VA received an informal claim for entitlement to a TDIU on May 19, 2014. (5/19/2014, VA 21-4138, p. 1). In a September 2014 rating decision, the RO denied the Veteran's claim for a TDIU. Subsequent to being notified of the denial of his claim, the Veteran submitted a lay statement in September 2015, which was received within one year of the September 2014 rating decision, notifying VA that he underwent a left leg below the knee amputation. (9/14/2015, VA 21-4138, p. 1). The record does not indicate that VA evaluated whether the Veteran's September 2015 submission was relevant to his pending claim. In December 2016, the Veteran filed another claim for entitlement to a TDIU. In a July 2017 rating decision, the RO granted entitlement to a TDIU, effective in December 2016. In a December 2019 rating decision, the RO changed the effective date to September 1, 2016. In light of the RO's failure to evaluate whether the September 2015 lay statement was relevant to the Veteran's pending claim, the Board finds that the May 19, 2014, TDIU claim was pending at the time the RO granted a TDIU in the July 2017 rating decision. As such, the Board finds that May 19, 2014, is the date of receipt of the claim. However, the Board notes that from May 16, 2014, to December 1, 2014, the Veteran was in receipt of a convalescence total disability rating under 38 C.F.R. § 4.30. As no additional disability compensation may be paid when a total schedular disability rating is already in effect for the same disability upon which a TDIU would be based, the Board finds that the date entitlement arose to a TDIU is December 1, 2014, the day the Veteran's convalescence rating ended. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008). Since the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance is the date of receipt of the claim or the date entitlement arose, whichever is later, the Board finds that the proper effective date for the grant of a TDIU is December 1, 2014. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In sum, the Board finds that the Veteran's May 2014 claim was not final at the time a TDIU was granted. However, he was in receipt of a total disability rating based on convalescence at the time, therefore entitlement to a TDIU did not arise until December 1, 2014, the date the convalescence rating ended. As such, the Board finds that he is entitled to an earlier effective date of December 1, 2014, for the grant of a TDIU. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.