Citation Nr: A21017243 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 200612-90990 DATE: October 25, 2021 ORDER Restoration of a 20 percent rating for right lower extremity (femoral) peripheral neuropathy from July 1, 2020, is granted. Restoration of a 20 percent rating for left lower extremity (femoral) peripheral neuropathy from July 1, 2020, is granted. FINDINGS OF FACT 1. The reduction in the disability rating for right lower extremity (femoral) peripheral neuropathy from a 20 percent to a 0 percent, noncompensable, rating was not based on evidence of sustained material improvement under the ordinary conditions of life. 2. The reduction in the disability rating for left lower extremity (femoral) peripheral neuropathy from a 20 percent to a 0 percent, noncompensable, rating was not based on evidence of sustained material improvement under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The criteria for a restoration of a 20 percent rating for right lower extremity (femoral) peripheral neuropathy from July 1, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344. 2. The criteria for a restoration of a 20 percent rating for left lower extremity (femoral) peripheral neuropathy from July 1, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision. Procedurally, a rating decision was issued under the legacy system in November 2015 which granted entitlement to service connection for bilateral lower extremity (sciatic and femoral nerves) peripheral neuropathy. The Veteran submitted a timely notice of disagreement, disagreeing with the initial evaluations and effective dates. In July 2019 the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). In September 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and opted into the modernized review system, also known as the Appeals Modernization Act (AMA), from the July 2019 SOC. In October 2019, the AOJ issued the HLR decision which denied increased ratings and proposed to reduce the ratings for the bilateral lower extremity (femoral) peripheral neuropathy. Subsequently, in an April 2020 rating decision, the AOJ decreased the ratings for the right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy from a 20 percent rating to a 0, noncompensable, rating, effective July 1, 2020. In June 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) indicating that he disagreed with the April 2020 rating decision, and elected the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Rating Reduction Where a reduction in 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 therefor. Additionally, the beneficiary must be given notice that he has 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). Where a rating has been in effect for five years or more the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher disability rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will 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 (a). The provisions of 38 C.F.R. § 3.344 require that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. See Brown v. Brown, 5 Vet. App. 413, 417 (1993). Whether the reduction in the disability ratings for right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy was proper. The Veteran, through his attorney, contends that his 20 percent ratings for this bilateral lower extremity (femoral) peripheral neuropathy should be restored, or that a referral should be made for a new examination to address his symptoms. See June 2020 VA Form 10182 with accompanying argument. For the following reasons, the Board finds that the reduction in the disability ratings for right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy from a 20 percent to 0 percent rating, effective July 1, 2020, was not proper and that, therefore, the 20 percent ratings must be restored. Historically, a rating decision was issued under the legacy system in November 2015 that granted service connection for right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy and assigned 20 percent ratings under DC 8520, effective June 15, 2015, based upon a September 2015 VA examination report. Under DC 8526 for the anterior crural (femoral) nerve, moderate incomplete paralysis warrants a 20 percent rating. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the Court noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms." One possible source for such definitions would be the dictionary. Webster's II New College Dictionary "moderate" as "of average or medium quantity, quality, or extent." Id. at 704. The September 2015 VA examination report showed that the Veteran reported mild to moderate symptoms in his bilateral lower extremities, such as constant pain, numbness, and intermittent pain. Upon physical examination, the Veteran's deep tendon reflexes were normal (+2) and he had decreased light to touch result in his bilateral lower extremities. The VA examiner indicated that the Veteran's femoral nerves were affected and characterized the Veteran's symptoms as moderate. In the October 2019 rating decision, the AOJ proposed to reduce the disability ratings for the Veteran's right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy from a 20 percent to a 0 percent rating, based upon an April 2019 VA examination report. The AOJ reasoned that the April 2019 examiner found that the Veteran's right and left femoral nerves were normal. The AOJ further reasoned that the Veteran had a sustained improvement in his right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy based on the April 2019 examination report. A review of the April 2019 VA examination report shows that the Veteran reported moderate symptoms in his bilateral lower extremities, such as constant pain, numbness, and intermittent pain. Upon physical examination, the Veteran's deep tendon reflexes were decreased, (+1) and he had decreased light to touch result in his bilateral lower extremities. The VA examiner indicated that the Veteran's femoral nerves were normal. The Veteran was notified of the October 2019 rating decision by way of an October 2019 letter. This letter notified him that he had a period of 60 days within which to submit additional evidence showing that the reduction should not have been made, that he had a period of 30 days within which to request a predetermination hearing, and that if a request for a predetermination hearing was not received within 30 days or additional evidence was not received within 60 days, the ratings for the service-connected right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy would be reduced from a 20 percent to a 0 percent rating and that reduced payments would begin the first day of the third month following notice of the final decision. In response to the October 2019 proposed rating reduction, the Veteran's attorney submitted a letter asserting that in August 2019 and September 2019, the Veteran was prescribed thigh length compression stockings and that he had edema in his lower extremities; and thus, asserting that the Veteran's right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy had not improved based on an overall review of the Veteran's medical history. Indeed, VA treatment records following the April 2019 VA examination indicate the Veteran had edema in his legs. See VA treatment record (December 2019). In an April 2020 rating decision, the AOJ decreased the ratings for right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy from a 20 percent rating to a 0 percent, noncompensable, rating, effective July 1, 2020. The AOJ cited that the evidence considered in their decision was the October 2019 rating decision, the April 2019 examination, and the pertinent evidence received since that decision. The Board finds that the AOJ complied with the due process requirements of 38 C.F.R. § 3.105 (e) by issuing the October 2019 rating decision and October 2019 letter which proposed the rating reductions for the Veteran's right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy. The Veteran was then given the appropriate time within which to request a predetermination hearing and to provide additional evidence. Thereafter, the AOJ promulgated the April 2020 rating decision, implementing the proposed reductions. Thus, as the notice and due process requirements of 38 C.F.R. § 3.105 (e) have been met, no further discussion in this regard is necessary. The Board points out that at the time the reduction took effect on 1 July 2020, the 20 percent ratings for the Veteran's right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy had been in effect since June 15, 2015. Thus, as the ratings had been in effect for more than five years, the provisions of 38 C.F.R. § 3.344 (a) are applicable in this case. As noted above, 38 C.F.R. § 3.344 (a) provides that although material improvement in a physical condition may be clearly reflected, the rating agency will 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 (a). In this case, the Board acknowledges that the April 2019 VA examiner found that the Veteran's right and left lower extremities femoral nerves were normal. However, at the April 2019 examination, the Veteran reported that he had moderate right and left lower extremities symptoms, such as numbness and constant pain. Additionally, upon physical examination, the Veteran had decreased light to touch results in his lower extremities. Also, the Veteran, through his attorney, indicated that he required compression stockings due to his right and left lower extremities symptoms. Overall, at the time of the April 2020 reduction, there was not clear evidence of sustained material improvement under the ordinary conditions of life. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Decisions by the AOJ and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Where a rating reduction was made without observance of law, the reduction is void and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The law is clear that certain procedures must be followed when a disability rating is reduced. The failure to properly apply the provisions of 38 C.F.R. § 3.344 renders the reductions from a 20 percent to a 0 percent rating for the Veteran's service-connected right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy void ab initio. Kitchens, 7 Vet. App. at 320; Dofflemeyer, 2 Vet. App. at 277. Accordingly, under these circumstances, the previously assigned 20 percent ratings for the Veteran's service-connected right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy must be restored. The 20 percent rating for right lower extremity (femoral) peripheral neuropathy and left lower extremity (femoral) peripheral neuropathy is restored, effective July 1, 2020. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.