Citation Nr: 21069112 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-46 010 DATE: November 17, 2021 ORDER Restoration of a 20 percent disability rating for degenerative disc disease of the lumbar spine, effective from April 19, 2016, to July 22, 2021, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a 20 percent disability rating, from January 24, 2018, for radiculopathy of the right lower extremity is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a disability rating in excess 20 percent for degenerative disc disease of the lumbar spine is remanded. FINDINGS OF FACT 1. There was no written notice of a proposed reduction of the Veteran's disability rating for degenerative disc disease of the lumbar spine prior to the issuance of a May 2016 rating decision that effectuated a reduction. 2. As of January 24, 2018, the Veteran's radiculopathy of the right lower extremity manifested as incomplete paralysis with a moderate severity. CONCLUSIONS OF LAW 1. The reduction of the Veteran's disability rating for degenerative disc disease of the lumbar spine from 20 percent to 10 percent effective from April 19, 2016, to July 22, 2021, was void ab initio, and restoration of the 20 percent rating is warranted. 38 C.F.R. § 3.105(e). 2. The criteria for entitlement to a 20 percent, but not higher, disability rating, from January 24, 2018, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from June 1957 to June 1960 and from September 1960 to March 1981. This matter comes to the Board of Veterans' Appeals (Board) from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Board remanded the claim for additional development. The Board notes that during the course of the appeal, the Veteran was granted service connection for radiculopathy of the right lower extremity, based the impact of the lumbar spine disability on the sciatic nerve. The Board shall also take jurisdiction over this issue in this decision. Reduction of a Rating 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, 595 (1991). 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. When a veteran's disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to 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. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. Schafrath, 1 Vet. App. at 594. 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 that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344 (c), however, specify that the provisions of 38 C.F.R. § 3.344(a) and (b) are only applicable for ratings which have continued for long periods at the same level (five years or more). The burden is on VA to justify a reduction in a rating. Brown v. Brown, 5 Vet. App. 413 (1993) (Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). When reducing a disability rating, the AOJ must follow certain procedural guidelines. 38 C.F.R. § 3.105(e). The AOJ must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction and mail it to the Veteran's latest address of record. Id. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Id. Then a rating action will be taken to effectuate the reduction. Id. 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. Id. 1. Whether the reduction in disability rating from 20 percent to 10 percent for degenerative disc disease of the lumbar spine, effective from April 19, 2016, to July 22, 2021, was proper In March 2016, the Veteran requested a rating in excess of 20 percent for his service-connected lumbar spine disability. The Veteran's lumbar spine disability was reduced to a 10 percent rating, as of March 28, 2016, in a May 2016 rating decision, based on the findings from the April 2016 VA examination. A subsequent rating decision from July 2017, corrected the May 2016 rating decision, finding clear and unmistakable evidence and altered the date of the reduction to April 19, 2016, the date of the VA examination. Following the correction by the AOJ, the decision to reduce the Veteran's disability rating, reduced his combined disability rating from a 60 percent combined rating to a 50 percent combined rating. The Veteran was not provided notice of this rating decision prior to taking the final action from the May 2016 rating decision. The Board finds that the AOJ did not comply with the procedural requirements under 38 C.F.R. § 3.105(e). The AOJ reduced the Veteran's degenerative disc disease of the lumbar spine disability rating from 20 percent to 10 percent without providing the notice required under 38 C.F.R. § 3.105(e) and thereby deprived the Veteran of due process. Where VA has reduced a Veteran's rating without observing applicable laws and regulations, such a rating is void ab initio and will be set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). Thus, the Veteran's rating is restored. Additionally, even if the proper procedure was followed, the Board finds that the May 2016 rating decision did not comply with Faust, as it did not adequately address whether there was any noted improvement in the Veteran's ability to function under the ordinary conditions of life and work. Increased Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2, and Schafrath, the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 2. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity In March 2016, the Veteran requested a rating increase for his service-connected lumbar spine disability. Based on the April 2016 VA examination that he was afforded for his lumbar spine, the radiculopathy of the right lower extremity was diagnosed, and service connection was granted in a May 2016 rating decision providing a 10 percent disability rating effective from March 28, 2016, the date of the claim for an increased rating, under Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent, the maximum available, is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. For VA purposes, the term "incomplete paralysis," with diseases of the peripheral nerves and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 . Turning to the medical evidence, the Veteran attended three VA examinations, in April 2016, January 2018, and July 2021. At the time of the April 2016 VA examination, the Veteran was noted to have radiculopathy of the sciatic nerve, resulting in mild bilateral paresthesias and/or dysesthesias and numbness. In the January 2018 VA examination, the Veteran was noted to have radiculopathy of the sciatic nerve, resulting in moderate right lower extremity numbness. In the July 2021 VA examination, there was noted radiculopathy of the sciatic nerve, resulting in moderate intermittent pain of the right lower extremity, moderate paresthesias and/or dysesthesias of the right lower extremity, and moderate numbness of the right lower extremity. The Board has also reviewed the Veteran's treatment records. After a review of the Veteran's treatment records, the Board finds that the Veteran's medical records do not show symptoms that his disability is worse than what was reported at his VA examinations. For the lower right extremity under Diagnostic Code 8520, affecting the sciatic nerve, the Board finds that the Veteran's disability more closely approximates a moderate incomplete paralysis, which warrants a 20 percent rating as of January 24, 2018. More specifically, at his January 2018 VA examination, the Veteran exhibited moderate right lower extremity numbness, and in his most recent VA examination, the Veteran exhibited moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. Consequently, the Board will give the Veteran the benefit of the doubt and find that the Veteran's symptoms in the lower right extremity more nearly approximate a moderate incomplete paralysis of the sciatic nerve and a 20 percent rating, but not greater, under Diagnostic Code 8520 as of January 24, 2018, is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess 20 percent for degenerative disc disease of the lumbar spine is remanded. While the Board sincerely regrets further delay in this matter, additional development is required before the Veteran's claim may be adjudicated on the merits. The United States Court of Appeals for Veterans Claims (the Court)'s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) requires that the claim be remanded. In the Sharp case, the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups." Id. at 10. While flare-ups are noted on the Veteran's January 2018 VA examination, an opinion with respect to the extent of functional impairment is not present and therefore, a retroactive opinion is warranted in light of Sharp. Accordingly, a retrospective opinion is required. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that in order for an examination to be adequate, it must include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Preliminarily, the Board finds that the past VA examinations have not complied with Correia, and the new VA examiner should also ensure compliance with Correia by providing a retrospective opinion. The matters are REMANDED for the following action: 1. An addendum must be obtained by an orthopedic specialist. The orthopedic specialist shall determine the severity of the Veteran's service-connected back disability and provide a retrospective opinion of the severity of the disability as of April 2016, January 2018, and July 2021. The Veteran's entire claims file, to include a copy of this decision, should be made available to the specialist. Following a complete review of the record, the specialist is asked to determine if an examination of the Veteran is necessary. The specialist should provide the following opinions: a. Determine whether the Veteran's range of motion results from the April 2016, January 2018, and July 2021 VA examinations would have been reduced if tested in both active and passive motion and in weight bearing and non-weight bearing. To the specialist's best ability, the additional range of motion loss should be described in degrees. If the specialist is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. b. The specialist should also provide an opinion regarding the extent of the Veteran's functional loss as described in his April 2016, January 2018, and July 2021 VA examinations. To the specialist's best ability, the additional range of motion loss should be described in degrees based on that information. If the specialist is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. The specialist is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the specialist should provide an explanation for doing so. The Veteran's statements may not be discounted solely on the basis of the lack of confirmation in the medical records. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.