Citation Nr: 21067601 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-51 407 DATE: November 4, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for a vocal cord disability. The claim for restoration of the 40 percent rating for the service-connected peripheral neuropathy of the right upper extremity as of September 1, 2018, is granted. The claim for restoration of the 30 percent rating for the service-connected peripheral neuropathy of the left upper extremity as of September 1, 2018, is granted. Entitlement to a rating higher than 20 percent for service connected diabetes mellitus II (diabetes) is denied. Entitlement to a total disability rating due to unemployability (TDIU) is granted. REMAND Entitlement to service connection for neuropathy of the vocal cords, to include as secondary to diabetes mellitus II (diabetes) is remanded. FINDINGS OF FACT 1. The Veteran filed claims for service connection for a vocal cord disability in November 2016, which was denied in a March 2017 rating decision. 2. The Veteran did not file a notice of disagreement or provide additional evidence and the March 2017 rating decision became final in March 2018. 3. The evidence received since March 2017 is not cumulative or redundant and raises a reasonable possibility of substantiating the service connection claim for a vocal cord disability. 4. The Veteran's service-connected radiculopathy in the left and right upper extremities was not rated as 30 and 40 percent respectively, for more than five years when the RO reduced the disability ratings to 20 percent, effective September 1, 2018. 5. The May 2018 rating decision reducing the rating for the Veteran's peripheral neuropathy of his bilateral upper extremities was improper and not in compliance with applicable laws and regulations, including because sustained and material improvement in this disability had not been shown that would be maintained under the ordinary conditions of life. 6. The evidence of record does not establish that the Veteran's diabetes required regulation of activities as part medical management. 7. The evidence supports a finding that the Veteran's service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a vocal cord disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The reduction of rating for peripheral neuropathy of the right upper extremity from 40 percent to 20 percent, effective September 1, 2018, was improper and is void ab initio. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105, 3.344, 3.655. 3. The reduction of rating for peripheral neuropathy of the left upper extremity from 30 percent to 20 percent, effective September 1, 2018, was improper and the rating is restored. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105, 3.344, 3.655. 4. The criteria for a rating higher than 20 percent for service-connected diabetes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 5. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Navy from September 1968 to June 1970. The Veteran testified at a Board hearing in June 2020 before the undersigned Veteran's Law Judge. A transcript is associated with the record. PETITION TO REOPEN The RO denied service connection for neuropathy of the vocal cords in a March 2017 rating decision. This decision became final in March 2018. The evidence submitted after March 2017, including a January 2019 VA examination and opinion, various treatment records including speech therapy consult in June 2020, and testimony from the June 2020 hearing relates to unestablished facts necessary to substantiate these service connection claims. Therefore, the Board finds that the claim may be reopened. REDUCTIONS The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. When a reduction in the rating of a service-connected disability is contemplated and the lower rating 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. First there must be a rating action proposing the reduction and giving the veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). 1. Whether the reduction of the rating from 30 to 20 percent for service-connected peripheral neuropathy of the left, upper extremity was proper. 2. Whether the reduction of the rating from 40 to 20 percent for service-connected peripheral neuropathy of the right, upper extremity was proper. Following review of the evidence, the Board finds that the reduction in the rating for peripheral neuropathy of the left upper extremity from 30 percent to 20 percent and right lower extremity from 40 to 20 percent was proper. In this case, the RO followed proper procedure in reducing the assigned rating for the Veteran's service-connected peripheral neuropathy of the bilateral lower extremity. The Veteran underwent VA examinations in March 2016, and May 2017 and the subsequent June 2017 rating decision proposed to reduce the assigned rating. A June 2017 notification letter for that rating decision informed the Veteran that he had 60 days in which to submit evidence, and of his right to request a predetermination hearing. Thereafter, the proposed reduction was effectuated by the May 2018 rating decision, effective from September 1, 2018, which is consistent with the requirement that effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. Inasmuch as the RO followed proper procedure, the Veteran was not entitled to the benefit sought on appeal on that basis. The Board must now address whether the competent evidence warranted a reduction in the assigned rating. In considering the propriety of a reduction, the Board will consider the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the purpose of determining whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. 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. 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). In this case, the provisions of 38 C.F.R. § 3.344(a) are not applicable, as the disability ratings for the Veteran's neuropathy of the bilateral lower extremity had been in effect for less than 5 years. In this case, the Board finds that the weight of the evidence did not demonstrate actual improvement of the upper extremity neuropathy under the ordinary conditions of life at the time of the rating reduction; therefore, the rating reduction was not proper, and the criteria for restoration of a 40 percent rating for the right upper extremity and 30 percent rating for left upper extremity, effective from September 1, 2018, are met. The May 2017 examination report indicated the Veteran's diabetes was controlled with oral medication and insulin daily. His symptoms included moderate intermittent pain, numbness, and paresthesias and/or dysesthesias. Muscle strength was normal and there was no atrophy. All deep tendon reflexes were hypoactive. Sensation testing for light touch was normal in all upper extremities. There were no trophic changes. He experienced mild, incomplete paralysis in bilateral radial nerves, median nerves, as well as the lower radicular group. The Veteran described trouble with fine motor movement and grasp using index finger and thumb. He had been dropping items more frequently. On examination, he indicated certain movement were painful and indicated he experienced ongoing neuropathic pain, stiffness, and contracture like movement in hands at times. Movement of hands was not fluid, and he had to focus effort on certain fine motor movement. The examiner found that this may represent an undiagnosed condition secondary to diabetes similar to flexor tenosynovitis or syndrome of limited joint mobility. The examiner found that the motor aspect of the exam was normal overall, except for sensory complaints and other reported history. Sensory loss would be a subjective finding. EMG testing was not conducted despite the examiner's finding that it would have been helpful in distinguishing between sensory neuropathy and any true decrease or damage to certain nerve tracts. During the May 2018 VA examination, the Veteran complained of ongoing pain, paresthesias, and numbness in all extremities. He experienced moderate constant pain, severe intermittent pain, moderate numbness, and moderate paresthesias and/or dysesthesias. There was slight decrease in grip and pinch (index finger to thumb). Deep tendon reflexes in his biceps and triceps were hypoactive. Sensory examination was normal. He suffered mild, incomplete paralysis in the radial nerve, median nerve, and lower radicular group. The Veteran used hand and wrist braces bilaterally on a constant basis. The Veteran was a small engines mechanic, he was no longer able to thread bolts, screws, or nuts. Small things drop out of his hands including tools. The examiner indicated that the Veteran's peripheral neuropathy was progressive, however, stable in comparison to the previous assessment. Although these examinations show some differences, there is no indication that his disability improved. Also, in light of the Veteran's lay statements regarding functional impairment and symptomatology, the Board finds that the RO did not consider all of the evidence in determining that a reduction was proper under Diagnostic Code 8513. See 38 U.S.C. § 4.124a. Specifically, during the June 2020 hearing the Veteran described increased numbness and ongoing sensory issues despite an increase in medication. Overall, he indicated that his condition had not improved. In this regard, the Board notes finds that the evidence of record does not demonstrate actual improvement in either the left or right upper extremity, as the Veteran continued to experience constant pain and reduced reflexes, and numbness. Consequently, the Board finds that the evidence of record was insufficient for the RO to reduce the Veteran's disability ratings and, thus, those reductions were improper. When an RO reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). Further, while the law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 actual improvement in the service-connected neuropathy of the upper extremities at the time of the March 2018 rating reduction, the Board finds that the reduction of the 40 and 30 percent ratings to 20 percent rating effective from September 1, 2018 was not proper. Therefore, restoration of the 40 percent rating for right upper extremity and 30 percent rating for left upper extremity under Diagnostic Code 8513 is warranted from September 1, 2018. INCREASED RATING 1. Entitlement to a rating higher than 20 percent for service connected diabetes The Veteran contends that he is entitled to a higher rating for diabetes based on an increase in treatment and medication. During the June 2020 hearing, he testified that his blood sugar was unpredictable even with careful planning and he was unable to engage in activities because he had to take his insulin along. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran's diabetes mellitus required only restricted diet and more than one daily injection of insulin during the period on appeal. The Veteran is competent to report that he has not been able to engage in the same type or frequency of activities. His reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that regulation of activities was required as part of the management of his diabetes during the period on appeal. Rather, it is very clear that his decrease in activity is due to his physical disabilities (knee and leg) as evidenced by the Veteran's own statements in various treatment records and his Social Security benefits application. The Veteran was provided VA examinations in May 2017, May 2018, and January 2019. The May 2017 and 2018 examiners indicated that the Veteran's activity was not regulated as part of medical management of his diabetes. However, the January 2019 examiner checked "yes" for this question and noted that the Veteran reported that he avoided exertional activities. The examiner provided an addendum opinion in March 2019 and clarified that the regulation of activities was not part of medical management of the Veteran's diabetes. The Board again notes that "regulation of activities" is part of treatment prescribed by a physician and it is not based on the Veteran's decision to refrain from engaging in certain activities. The Veteran is already service connected for peripheral neuropathy of the bilateral, upper lower extremities. Neuropathy of the vocal cords as related to diabetes has been denied above. The Veteran does not assert, nor does the record show, that he has any other complications of diabetes mellitus. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. TDIU The Veteran seeks a TDIU. He has asserted that he is unable to work due to loss of sensation and grip in his hand/fingers due to diabetic neuropathy. The Board notes that the issue of entitlement to a TDIU was adjudicated in the May 2017 rating decision. The Veteran did not submit a notice of disagreement. However, since that time, the Veteran has raised the issue in the June 2020 hearing and during VA examinations. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for right upper extremity peripheral neuropathy (PN) at 40 percent, left upper extremity PN at 30 percent, bilateral hearing loss at 30 percent, diabetes at 20 percent, left lower extremity PN at 20 percent, right lower extremity PN at 20 percent, and tinnitus at 10 percent. Based on the foregoing, his combined rating is 90 percent and he has at least one disability rated at 40 percent and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. In his April 2017 TDIU application, the Veteran indicated that he last worked in October 2007 and left because of his disability. He also noted that he was not receiving worker's compensation or retirement benefits. An employment information sheet completed by his former employer indicated the Veteran last worked in March 2008, retiring on April 1, 2008. There was no information regarding entitlement to any benefits, including retirement. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of diabetes and related peripheral neuropathy. He has reported ongoing pain, paresthesias, and numbness. During the June 2020 hearing, he described an inability to hold a saw as it related to his neuropathy. Per the May 2018 VA examination, he experienced slight decrease in grip and pinch (index finger to thumb). On examination in May 2017, movement of his hands was not fluid, and he had to focus effort on certain fine motor movement. Given the forgoing, the Veteran's service-connected diabetic neuropathy precludes him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. As a mechanic, his hands and fingers are important to his ability to accomplish nearly all tasks related to his job. Numbness and pain impacting his grip would heavily impact his ability to hold and maneuver tools, parts, etc. Therefore, affording the Veteran all benefit-of-the-doubt, the Board finds that he is unable to perform the physical acts required for substantially gainful employment due to his service-connected disabilities. Accordingly, TDIU is therefore warranted. See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (providing that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator). REASONS FOR REMAND 1. Entitlement to service connection for neuropathy of the vocal cords, to include as secondary to diabetes is remanded. The January 2019 VA examiner found that the Veteran did not a diagnosis of neuropathy of the vocal cords and that his current vocal cord condition is not the result of or secondarily related to his diabetes mellitus. However, the Board finds the opinion inadequate because the examiner failed to address whether the Veteran's service-connected diabetes aggravated his vocal cord disability; rather the same opinion was provided as to both causation and aggravation. The Board finds that remand is appropriate to obtain an addendum opinion addressing secondary service connection, to include causation and aggravation. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's vocal cord disability is at least as likely as not related to his service, to include exposure to herbicide agents. The examiner is also asked to address whether his vocal cord disability was caused or aggravated beyond its natural progression by his service-connected diabetes. It is left to the examiner's discretion whether to reexamine the Veteran. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.