Citation Nr: 21066612 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-45 367 DATE: November 1, 2021 ORDER The reduction of the 20 percent disability rating to 10 percent for the service-connected right foot tarsal tunnel syndrome with toe numbness (hereinafter referred to as a right foot disability), effective from March 12, 2016, was not proper; restoration of the 20 percent disability rating from March 12, 2016 is granted. FINDINGS OF FACT 1. In an April 2016 rating decision, the Regional Office (RO) implemented a reduction to 10 percent disabling for the service-connected right foot disability, effective March 12, 2016. 2. The 20 percent disability rating for the service-connected right foot disability was in effect for less than five years at the time of the reduction. 3. At the time the reduction in the disability rating for the service-connected right foot disability was effectuated, the right foot had not undergone sustained improvement. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the reduction of the disability rating for the service-connected right foot disability from 20 percent to 10 percent was not proper; therefore, the 20 percent disability rating will be restored from March 12, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 8525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1994 to November 2003. This matter is on appeal from an April 2016 rating decision issued by the Regional Office (RO) in Augusta, Maine. The Veteran filed notice of disagreement in May 2016. A statement of the case was issued in August 2017. During the pendency of the appeal, another rating decision was issued in October 2019. The RO increased the rating for the right foot disability from 10 percent to 20 percent, effective from July 9, 2019. The Veteran testified at a Board videoconference hearing in October 2021 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Legal Authority for Restoration Initially, the Board observes that the RO did not comply with the procedural safeguards regarding notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. In an August 2015 rating decision, the RO acknowledged that the Veteran was receiving a 100 percent rating for the right foot disability based on surgical or other treatment necessitating convalescence and the RO assigned a 20 percent rating for the right foot disability following the convalescence. In the instant April 2016 rating decision, the RO reduced the 20 percent rating for the right foot disability to 10 percent from March 12, 2016. There is no documentation that the Veteran was ever notified of a proposed reduction. However, as this is a full grant of benefits and the Veteran is not prejudiced by the procedural error, the Board will now consider the propriety of the rating reduction. Under the provisions of 38 C.F.R. § 3.344 (c), when a disability rating has been in effect for less than five years, a reexamination that shows improvement in a disability warrants a reduction in disability benefits. 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 v. Brown, 5 Vet. App. 413, 418 (1993); 38 C.F.R. § 3.344 (c). Restoration of a 20 Percent Rating for the Right Foot Disability from March 12, 2016 The question of whether a disability has improved involves consideration of the applicable rating criteria. At the time of the rating reduction, the right foot disability had been rated under the criteria found at 38 C.F.R. § 4.71a, DC 8525. Under DC 8525, a 10 percent rating is assigned for mild or moderate incomplete paralysis of the right foot. A 20 percent rating is assigned for severe incomplete paralysis of the right foot. A 30 percent rating is assigned for complete paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; and plantar flexion is impaired. In this case, the Board finds that the 20 percent disability rating for the service-connected right foot disability was in effect for less than five years at the time of the reduction. The Board also finds that at the time the reduction in the disability rating for the service-connected right foot disability was effectuated, the right foot had not undergone sustained improvement. During the March 2016 VA examination, the Veteran reported that the disability has worsened with constant flare ups, pain, swelling, and fatigue. The VA examiner noted that the Veteran experienced severe intermittent pain, severe numbness, and severe paresthesias and/or dysesthesia in the right lower extremity. The VA examiner indicated that the Veteran experienced mild incomplete paralysis of the posterior tibial nerve in the right lower extremity. During a May 2017 VA examination, the Veteran reported pain and has received several corticosteroid injections to treat said pain. The VA examiner noted that the Veteran experienced moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesia, and moderate numbness in the right lower extremity. The VA examiner indicated that the Veteran experienced mild incomplete paralysis of the internal popliteal nerve in the right lower extremity. The Veteran submitted lay evidence in August 2019. The Veteran explained that the right foot disability has significantly worsened. The Veteran claimed that she experienced burning, tingling, shooting pain, and numbness and pain with extended walking and standing. The Veteran also claimed that she has decreased range of motion, wears a prescribed brace for support, has difficulty driving, and is unable to participate in recreational sports. During the October 2021 Board videoconference hearing, the Veteran credibly testified that symptoms of the right foot disability have worsened. (Continued on the next page) Because the burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence, and the evidence of record in this case does not show sustained improvement in the service-connected right foot disability at the time of the April 2016 rating reduction, the Board finds that the reduction of the 20 percent rating to 10 percent rating effective March 12, 2016 was not proper; therefore, restoration of the 20 percent disability rating under DC 8525 is warranted from March 12, 2016. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.