Citation Nr: A21019017 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 211030-194498 DATE: November 30, 2021 ORDER Entitlement to restoration of a 20 percent rating for right lower extremity radiculopathy is granted. INTRODUCTION The Veteran served on active duty from June 1956 to December 1980. The Veteran submitted a VA Form 10182 in October 2021, wherein he elected to have his claim reviewed under the Appeals Modernization Act (AMA) and specifically in the Direct Review lane. FINDING OF FACT A comparison of the evidence upon which a 20 percent disability rating was awarded with the evidence reviewed in connection with the rating reduction to a noncompensable disability rating does not reflect any significant improvement in the Veteran's service-connected right lower extremity radiculopathy. CONCLUSION OF LAW The 20 percent disability rating for right lower extremity radiculopathy was not properly reduced to 0 percent. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Board is granting the Veteran's claim, any error committed with respect to that claim is harmless. Legal Criteria Pursuant to 38 C.F.R. § 3.105 (e), where a reduction in the 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 therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e). Factual Background and Analysis The Veteran disagrees with an August 2021 rating decision that reduced the rating for his service-connected right lower extremity radiculopathy effective November 1, 2021. He contends that symptoms associated with his disability have not improved and that the reduction was not warranted. A copy of a rating decision proposing to reduce his disability was sent to the Veteran in June 2021. A letter sent with the rating decision informed the Veteran that he would be afforded 60 days for the presentation of additional evidence to show that compensation payments should be continued at the previously assigned percentage level and that he could request a predetermination hearing. In August 2021, the rating decision effectuating the reduction was issued. Thus, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. The RO has evaluated the Veteran's right lower extremity radiculopathy under the schedule of ratings for diseases of the peripheral nerves. See 38 C.F.R. § 4.124a. The primary basis for the 20 percent pre-reduction rating was an August 2020 VA examination report, as well as private treatment records from Southern Bay Anesthesia and Pain. At the August 2020 examination, the Veteran reported experiencing progressive pain in his right leg. The examiner noted the Veteran's difficulty with ambulation. Further, the examiner indicated the Veteran required a cane and at times a wheelchair. The examiner conducted all indicated nerve tests, to include light tough sensory testing, motor, and deep tendon reflex assessments. Following the examination, the examiner found the Veteran had a moderate right lower extremity radiculopathy affecting the sciatic nerve. The Board also notes the Veteran's treatment records from the Southern Bay Anesthesia and Pain Clinic show he has received over 40 epidural steroid injections and nerve block procedures to alleviate his radiating lumbar spine pain. The RO's basis for proposing the reduction was predominantly a May 2021 VA examination report. In this report, the Veteran continued to report moderate to severe pain extending to his right femur. Following this examination, the examiner found the Veteran had insufficient evidence to warrant a diagnosis of radiculopathy; however, the examiner wholly failed to explain this conclusion. The Board finds this finding curious, especially given the Veteran's extensive history of treatment for a significant right lower extremity neurological disorder. Additionally, the May 2021 examiner's conclusion is made even more specious by virtue of his acknowledgement of a CT scan revealing nerve root impingement. Following the May 2021 VA examination, the Veteran provided additional private treatment reports from Neurology & Neuro-electrodiagnosis. In his July 2021 report, the Veteran's treating Neurophysiologist indicated the Veteran cannot stand on his right leg unaided. Additionally, the physician found diminished muscle power in the right hip, knee, and ankle. The examiner also noted sensory impairment in the right foot. He again diagnosed the Veteran with right lumbosacral radiculopathy, citing to an MRI which revealed nerve root impingement. In consideration of this information, the Board finds that a comparison of the evidence upon which the pre-reduction disability rating was awarded with the evidence reviewed in connection with the rating reduction to 0 percent does not reflect sufficient improvement in the Veteran's service-connected right lower extremity radiculopathy to warrant a reduction. In consideration of the foregoing, the Board finds the criteria for a rating reduction were not met. Accordingly, restoration of the 20 percent rating, from the effective date of the reduction is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.