Citation Nr: 21072766 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-05 427 DATE: December 6, 2021 ISSUES 1. Whether the rating reduction for service-connected left lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability) from 20 percent to 10 percent, was proper. 2. Whether the rating reduction for service-connected right lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability) from 20 percent to 10 percent, was proper. 3. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability). 4. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability). ORDER The reduction in evaluation from 20 to 10 percent for service-connected right lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability), effective December 1, 2021, was improper; restoration of a 20 percent rating is granted. The reduction in evaluation from 20 to 10 percent for service-connected left lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability), effective December 1, 2021, was improper; restoration of a 20 percent rating is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability) is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability) is remanded. FINDINGS OF FACT 1. A rating decision dated September 2021 reduced the 20 percent disability rating assigned for service-connected left lower extremity muscle group XI disability to 10 percent, effective December 1, 2021. 2. At the time of the reduction, a 20 percent rating for the Veteran's service-connected left lower extremity muscle group XI disability had been in effect since June 12, 2012, a period of more than five years. 3. The evidence fails to demonstrate a sustained improvement in the severity of the Veteran's service-connected left lower extremity muscle group XI disability from the date of the assignment of the 20 percent disability rating. 4. A rating decision dated September 2021 reduced the 20 percent disability rating assigned for service-connected right lower extremity muscle group XI disability to 10 percent, effective December 1, 2021. 5. At the time of the reduction, a 20 percent rating for the Veteran's service-connected right lower extremity muscle group XI disability had been in effect since June 12, 2012, a period of more than five years. 6. The evidence fails to demonstrate a sustained improvement in the severity of the Veteran's service-connected right lower extremity muscle group XI disability from the date of the assignment of the 20 percent disability rating. CONCLUSIONS OF LAW 1. The reduction of the rating for service-connected left lower extremity chronic exertional compartment syndrome affecting muscle group XI from a 20 percent rating to a 10 percent rating, effective December 1, 2021, was improper and the 20 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344. 2. The reduction of the rating for service-connected right lower extremity chronic exertional compartment syndrome affecting muscle group XI from a 20 percent rating to a 10 percent rating, effective December 1, 2021, was improper and the 20 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Coast Guard from April 2002 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, a rating decision from September 2009 granted the Veteran entitlement to service connection for bilateral chronic exertional compartment syndrome of the lower extremities at a noncompensable disability rating. A rating decision from August 2010 increased those disability ratings to 10 percent each. The Veteran filed an increased ratings claim, and a rating decision from October 2014 increased both of those disability ratings to 20 percent. The RO also changed the name of how those disabilities to including muscle group XI disabilities. The Veteran filed a timely Notice of Disagreement (NOD) in December 2014. The Veteran was issued a statement of the case (SOC), and he filed a timely VA Form 9 in January 2017, appealing those increased ratings claims to the Board. In December 2018, the Board remanded both of the increased ratings claims for the service-connected muscle group XI disabilities for a VA examination. That VA examination occurred in June 2020. The Veteran's claims were returned to the Board, but they were remanded again in August 2021. Specifically, the August 2021 Board Decision remanded the muscle group disability claims so that an SSOC could be issued, following the June 2020 VA examination. The Veteran has been issued that SSOC in August 2021 and his claims have returned to the Board. The August 2021 Board Decision also remanded separate issues of entitlement to increased disability ratings for service-connected bilateral lower extremity neurological residuals of the peroneal nerves. Those issues were remanded so that the RO could issue the Veteran an SOC, as one had not been issued in response to the Veteran's timely NOD, which was filed following the October 2014 rating decision. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). That SOC has since been issued. Therefore, the Board finds that substantial compliance with the August 2021 remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In the August 2021 remand directives, the Veteran was informed that the increased ratings claims for his service-connected neurological residuals of the bilateral lower extremity peroneal nerves would require perfection of the appeal by submitting a timely VA Form 9. He was issued that SSOC in August 2021. Having said that, the Veteran has not submitted a timely VA Form 9 to perfect those appeals. Therefore, the increased ratings claims for the Veteran's service-connected neurological residuals of the bilateral lower extremity peroneal nerves are not currently before the Board. The August 2021 Board Decision also noted that the RO had proposed to reduce the Veteran's disability ratings for his service-connected bilateral muscle group XI disabilities from 20 percent to 10 percent each. As the proposed reduction of the service-connected bilateral muscle group XI disabilities involves the same increased ratings issues that are currently on appeal, the Board finds that those issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, the Board is taking jurisdiction of those reduction issues for the purposes of adjudicating the Veteran's increased ratings claims. The issues involving the proposed reductions has been reflected on the title page, and they are addressed in the subsequent section. Whether the rating reductions for service-connected bilateral lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability) from 20 percent to 10 percent each, was proper. The law provides that where a rating decision 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. See 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. See 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a clear requirement that VA rating reduction 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. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, 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). They do not apply to disabilities which have not become stabilized and are likely to improve. Pursuant to 38 C.F.R. § 3.344 (a), if a rating has been in effect for more than five years, then rating agencies will handle cases of changes of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. 38 C.F.R. § 3.344 (a). It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Id. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Id. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. In this case, at the time of the reduction, the Veteran had been service-connected for his bilateral lower extremity muscle group XI disabilities at the 20 percent rating from June 2012, a period of over five years. As discussed above, the August 2021 Board Decision noted that the RO had proposed to reduce the Veteran's disability ratings for his service-connected bilateral muscle group XI disabilities from 20 percent to 10 percent each. The RO issued that proposed reduction via a rating decision in June 2021, based off of a VA examination from that same month. The Board noted at the time that the record did not reflect that the Veteran was sent notification of his right to appeal that decision, and the procedure to do so. Following the August 2021 Board Remand, that notification was then sent to the Veteran. In response, the Veteran returned to the notification letter in August 2021 with the words "inaccurate and incomplete assessment" over the notification letter, indicating his disagreement with the proposed reduction. The Veteran also submitted a statement in August 2021 in support of his claim. The Veteran wrote that he disagreed with the rating decision that proposed to reduce his disability rating. The Veteran wrote that the evaluation [the VA examiner] conducted was incomplete and completely inaccurate. I have suffered ... all these years and it has gotten worse. I have a rare chronic/severe condition on both of my legs and the VES doctor did not know how to conduct a proper assessment ... I am in pain every single day. Moreover, I have constant pain, burning/cramping, itching, tightness/stiffness, weakness, scar bulging/swelling, fatigue, and impairment of coordination/movement of both my legs ... the [VA examiner] just asked me some simple questions, measured my scars and did some range of motion and strength testing. The evaluation took approximately 15 minutes. I felt that it was a rushed evaluation and that it is not the accurate way to evaluate a Veteran ... I have not improved in any of my multiple conditions, on the contrary, my illnesses have gotten worse. The Veteran continued on to describe the VA examination from June 2021 as exhibiting a "lack of professionalism, lack of transparency and lack of knowledge and expertise." The Veteran then requested that he be "re-evaluated by a competent VA approved medical doctor." The Veteran is competent to report the symptoms he experiences, such as those associated with his bilateral lower extremity muscle group XI disabilities. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In consideration of the above, the Board finds that the rating reduction for the Veteran's bilateral lower extremity muscle group XI disabilities from 20 percent to 10 percent, effective December 1, 2021 was improper, and that restoration is warranted. Specifically, the Board finds that the evidence of record does not demonstrate an actual improvement under the ordinary conditions of life has occurred. The RO used the June 2021 VA examination as the primary medical evidence to justify reducing the Veteran's disability ratings. The Board is reminded that the Veteran was not originally notified of this proposed reduction until the August 2021 Board Decision indicated as such. The Veteran then submitted a response to the proposed reduction, writing on the same notification letter that the assessment was "inaccurate and incomplete." The Veteran followed that up with a detailed statement, indicating his belief that the June 2021 was rushed, which led to inaccurate results. The Veteran wrote that he believed the VA examination was incomplete, and that the clinical testing that took place did not fully evaluate his lower extremity disabilities. The Veteran's statement, at the very least, indicates that the examination may have not been thorough, which is required. See 38 C.F.R. § 3.344 (a). Regardless, the Board is asked as to whether or not the evidence demonstrates an actual improvement under the ordinary conditions of the Veteran's life. On the contrary, the Veteran's statement from August 2021 indicates that his disabilities may "have gotten worse." The Board is also reminded that the Veteran has outstanding claims for increased ratings for these exact disabilities, based on his contention that the disabilities are worse than currently rated. Those claims are addressed below. As a reminder, it is essential that the entire record of medical and lay evidence be reviewed to ascertain whether the recent examination is full and complete. 38 C.F.R. § 3.344 (a). Thus, the Board finds that the symptoms described by the Veteran, coupled with his statement that the June 2021 VA examination was inadequate, indicate that there has not been an actual improvement under the ordinary conditions of the Veteran's life. As there is not a preponderance of the evidence to support the reduction, the rating reduction was not proper, and the 20 percent rating is restored for each service-connected bilateral lower extremity muscle group XI disability. See 38 C.F.R. § 3.105 (e). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to disability ratings in excess of 20 percent for service-connected bilateral lower extremity chronic exertional compartment syndrome affecting muscle group XI (muscle group XI disability) are each remanded. The Board incorporates its discussion from the sections above by reference. As noted above, the Veteran has claimed that his service-connected bilateral muscle group XI disabilities are each worse than currently rated. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board recognizes the Veteran's August 2021 statement, where he indicated that the most recent VA examination from June 2021 was rushed, "inaccurate and incomplete." The Board also notes that the Veteran has provided a detailed description of the symptoms of his lower extremities, including that the current severity has "gotten worse." A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992). Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the current nature and severity of his service-connected bilateral lower extremity muscle group XI disabilities. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Forward the Veteran's claims file to an appropriate clinician who has not previously examined the Veteran for a VA examination to address the current nature and severity of his service-connected bilateral lower extremity chronic exertional compartment syndrome affecting muscle groups XI. A copy of this remand must be made available to the examiner for review in conjunction with this examination. As it relates to the Veteran's service-connected bilateral lower extremity muscle group XI disabilities: (a.) provide an accurate assessment of the current severity of the Veteran's service-connected bilateral lower extremity muscle group XI disabilities. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner is reminded that the Veteran has provided competent lay statements that describe the symptoms he experiences for his bilateral lower extremities. See August 2021 Statement in Support of Claim. 3. After completing the development noted above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an SSOC to the Veteran and his Representative. After they have had an adequate opportunity to respond, return the appeals to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.