Citation Nr: 21069636 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 14-32 767 DATE: November 19, 2021 ORDER The reduction of the disability evaluation for right arm polyneuropathy from 30 percent to 10 percent was improper, and restoration of the 30 percent disability rating, effective January 1, 2012, is granted. The reduction of the disability evaluation for left arm polyneuropathy from 20 percent to 10 percent was improper, and restoration of the 20 percent disability rating, effective January 1, 2012, is granted. The reduction of the disability evaluation for right leg polyneuropathy from 20 percent to 10 percent was improper, and restoration of the 20 percent disability rating, effective January 1, 2012, is granted. The reduction of the disability evaluation for left leg polyneuropathy from 20 percent to 10 percent was improper, and restoration of the 20 percent disability rating, effective January 1, 2012, is granted. FINDINGS OF FACT 1. An October 2011 rating decision reduced the evaluations for the Veteran's right arm polyneuropathy from 30 percent to 10 percent; left arm polyneuropathy from 20 percent to 10 percent; right leg polyneuropathy from 20 to 10 percent; and left leg polyneuropathy from 20 percent to 10 percent, all effective January 1, 2012. 2. At the time of the October 2011 rating decision, the evaluations for the Veteran's service-connected polyneuropathy for the right arm, left arm, right leg and left leg had been in effect for less than five years. 3. The evidence of record at the time of the October 2011 rating decision failed to demonstrate an improvement in the Veteran's service-connected right arm polyneuropathy. 4. The evidence of record at the time of the October 2011 rating decision failed to demonstrate an improvement in the Veteran's service-connected left arm polyneuropathy. 5. The evidence of record at the time of the October 2011 rating decision failed to demonstrate an improvement in the Veteran's service-connected right leg polyneuropathy. 6. The evidence of record at the time of the October 2011 rating decision failed to demonstrate a sustained improvement in the Veteran's service-connected left leg polyneuropathy. CONCLUSIONS OF LAW 1. The criteria for restoration of the 30 percent disability rating for the Veteran's service-connected right arm polyneuropathy, effective January 1, 2012, have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.344, 4.124a, Diagnostic Code 8515. 2. The criteria for restoration of the 20 percent disability rating for the Veteran's service-connected left arm polyneuropathy, effective January 1, 2012, have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.344, 4.124a, Diagnostic Code 8515. 3. The criteria for restoration of the 20 percent disability rating for the Veteran's service-connected right leg polyneuropathy, effective January 1, 2012, have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.344, 4.124a, Diagnostic Code 8520. 4. The criteria for restoration of the 20 percent disability rating for the Veteran's service-connected left leg polyneuropathy, effective January 1, 2012, have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.344, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to March 1989. In an April 2018 decision, the Board previously found that the reduction of the disability ratings for the Veteran's service-connected polyneuropathy of the upper and lower extremities were proper; and denied the appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in November 2019, the Court vacated the Board decision with respect to these issues and remanded them for further proceedings consistent with the decision. Specifically, the Court found that the Board failed to consider whether there was an improvement in the Veteran's ability to function under ordinary conditions of life and work. The Board also previously denied the issue of service connection for entitlement to service connection for a seizure disorder. The Veteran did not raise any argument with respect to this issue and, thus, the Court, found that the Veteran had abandoned the appeal of this issue and the Court dismissed it. Whether reduction of the disability evaluations for polyneuropathy of the right arm, left arm, right leg and left leg were proper This appeal arises out of the Veteran's disagreement with a decision to reduce his disability ratings for right arm polyneuropathy from 30 percent to 10 percent; left arm polyneuropathy from 20 percent to 10 percent; right leg polyneuropathy from 20 to 10 percent; and left leg polyneuropathy from 20 percent to 10 percent, all effective January 1, 2012. A claim stemming from a rating reduction action is a claim as to whether the reduction was proper, not whether the Veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Regulations provide that where the 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, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The Veteran will be notified of the proposed reduction, that he has 60 days to present evidence showing why the reduction should not be implemented, and that he may request a hearing. 38 C.F.R. § 3.105 (e). In the instant case, the Board observes that the agency of original jurisdiction (AOJ) complied with § 3.105(e) in that the Veteran was informed of the proposed action in a July 2010 rating decision. In an August 2010 letter, the Veteran was notified of the opportunity to present additional evidence within a 60-day period as well as his right to request a personal hearing. Thereafter, the reduction was effectuated in the October 2011 rating decision on appeal. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) stated that this regulation applied to ratings that had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the ratings assigned were in effect from March 29, 2007, less than 5 years, and thus the provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability evaluations do not apply, and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Nevertheless, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, supra, at 277. Accordingly, the Board must determine whether the evidence of record as of October 2011 established that the Veteran's right arm polyneuropathy no longer warranted a 30 percent rating and the Veteran's left arm polyneuropathy no longer warranted a 20 percent rating under 38 C.F.R. § 4.124(a), Diagnostic Code 8515. Likewise, the Board must determine whether the evidence of record as of October 2011 established that the Veteran's right leg and left leg polyneuropathy no longer warranted 20 percent ratings under 38 C.F.R. § 4.124(a), Diagnostic Code 8520. The Veteran's upper extremities have been rated under Diagnostic Code 8515 for paralysis of the median nerve. Under this code, incomplete paralysis of the median nerve of the major hand warrants a 10 percent rating when mild, a 30 percent rating when moderate, and a 50 percent rating when severe. Complete paralysis of the median nerve of the major hand warrants a 70 percent rating. Further, incomplete paralysis of the median nerve of the minor hand warrants a 10 percent rating when mild, a 20 percent rating when moderate, and a 40 percent rating when severe. Complete paralysis of the median nerve of the minor hand warrants a 60 percent rating. 38 C.F.R. § 4.124a , Diagnostic Code 8515. Moreover, the Veteran's lower extremities have been rated under 38 C.F.R. § 4.124a , Diagnostic Code 8520 for paralysis of the sciatic nerve. Under this code, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; 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. After a thorough review of the evidence, the Board finds that the record does not show that the Veteran's polyneuropathy of the upper and lower extremities improved so as to warrant reduction of the ratings under the appropriate rating criteria. Initially, the Board notes that the April 2008 VA examiner found that the Veteran had decreased touch, pin prick, vibration and temperature in stocking-like distribution involving both the upper and lower extremities. However, nerve conduction studies were within normal limits. It was noted that the Veteran had subjective symptoms of numbness involving both the upper and lower extremities. Based on this examination, the AOJ continued the Veteran's already assigned ratings in a September 2008 rating decision. The Veteran was afforded another examination in April 2010. The Veteran again reported constant numbness, no feeling from the elbow to hands, and from knees to feet. It was noted that the Veteran had neuralgia of the upper and lower extremities. However, sensory testing was normal. It was observed that the Veteran owned a construction company/general contractor. In the last two years, he had to greatly modify work and jobs taken. He must be able to see in order to perform tasks. He also experienced difficulty grasping hand tools and maintaining grip. At a subsequent June 2011 VA examination, the Veteran again reported constant numbness and tingling of the hands and feet. Here, on sensory examination, the Veteran did have slightly reduced pinprick, temperature, and vibration in stocking glove like distribution involving both upper and lower extremities. It appears that the AOJ based the reduction solely on the April 2010 and June 2011 VA examination reports. However, the examination reports appear to document similar findings of the prior May 2008 VA examination. Importantly, although the April 2010 examination showed normal sensory testing, the June 2011 examination again showed reduced pinprick, temperature and vibration in stocking glove like distribution, which was similar to findings at the prior May 2008 examination. Thus, it does not appear that the most recent examinations reflected improvement to warrant a reduction. Moreover, the description of the Veteran's functional impairment in work and social settings does not clearly reflect any improvement. Again, the Veteran reported that he had to greatly modify work and jobs taken due to his symptoms. The Veteran also consistently reported constant numbness and tingling. In sum, the April 2010 and June 2011 examinations do not show an improvement in the Veteran's ability to function under the ordinary conditions of his life and work, which is required in order for the AOJ's reduction of the Veteran's ratings to be proper. Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344 (c). Importantly, VA clinical records show that the Veteran continued to experience increased numbness and tingling in his lower and upper extremities. Moreover, the Veteran's statements of record continued to report severe symptoms and functional limitations with respect to his work and activities of daily living. He unequivocally stated that his symptoms had not gotten better. Under these circumstances, the evidence clearly did not demonstrate improvement in ability to function under ordinary conditions of life and work. In sum, the Board finds that based on the evidence at the time of the reduction, the Veteran's service-connected right arm polyneuropathy still demonstrated functional limitations to warrant a 30 percent disability rating. Similarly, the Veteran's service-connected left arm polyneuropathy, right leg polyneuropathy and left leg polyneuropathy still demonstrated functional impairment to warrant 20 percent disability ratings. Accordingly, based on the analysis above, the reduction of the Veteran's disability ratings for right polyneuropathy, left arm polyneuropathy, right leg polyneuropathy and left leg polyneuropathy was improper and restoration of a 30 percent rating for right arm polyneuropathy; a 20 percent rating for left arm polyneuropathy; a 20 percent for right leg polyneuropathy; and a 20 percent rating for left leg polyneuropathy is warranted, effective January 1, 2012. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.