Citation Nr: 21072960 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-03 162 DATE: December 7, 2021 ORDER The reduction in disability rating for psoriatic arthritis of the right and left hand to a single disability rating for bilateral hand psoriatic arthritis was not proper; restoration of a separate 10 percent disability rating for each hand, effective August 1, 2015, is granted. REMANDED Entitlement to service connection for a neck disability, to include as secondary to the service-connected psoriasis, is remanded. Entitlement to service connection for a bilateral elbow disability, to include as secondary to the service-connected psoriasis, is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to the service-connected psoriasis, is remanded. Entitlement to service connection for a bilateral foot disability, to include as secondary to the service-connected psoriasis, is remanded. Entitlement to a rating higher than 10 percent for right hand psoriatic arthritis is remanded. Entitlement to a rating higher than 10 percent for left hand psoriatic arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. By a September 2014 rating decision, the RO proposed to reduce the assigned disability rating for the Veteran's right- and left-hand psoriatic arthritis from 10 percent each to a single 10 percent rating, and by a May 2015 rating decision reduced the rating effective August 1, 2015. 2. At the time of the reduction, the 10 percent rating for each hand has been in effect for more than five years and the reduction reduced the Veteran's overall level of compensation and combined disability rating. 3. The RO misapplied the rating criteria governing the Veteran's psoriatic arthritis and sustained material improvement of the Veteran's ability to function under ordinary conditions of life and work as a result of his right- and left-hand psoriatic arthritis has not been demonstrated by the preponderance of the evidence. CONCLUSION OF LAW The criteria for restoration of the 10 percent rating for each hand, right and left, psoriatic arthritis, effective August 1, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5009. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1968 to August 1971. In June 2018, the Board remanded the appeal for further development. Thereafter, in February 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Reduction and Restoration The Veteran asserted that he is entitled to the restoration of separate 10 percent ratings for psoriatic arthritis of each hand as opposed to the now assigned one 10 percent rating for both hands. Initially, the Board notes that the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by way of a September 2014 letter notifying him of his rights and also giving him an opportunity for a hearing and time to respond. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken, and the rating will be reduced or discontinued 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 expires. 38 C.F.R. § 3.105(e). In this case, the separate 10 percent disability rating for each hand psoriatic arthritis had been in effect for more than five years. Accordingly, the provisions of 38 C.F.R. § 3.344 (a) and (b) apply, which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). Where a rating has been in effect for five years or more, as in this case, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical 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. 38 C.F.R. § 3.344(a). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer at 281-282. However, post-reduction evidence may not be used to justify an improper reduction. In considering the propriety of a reduction in this case, a review of the regulations for establishing disability ratings is appropriate. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. In the present case, VA did not claim that sustained improvement has been demonstrated. Rather, the RO indicated that there was a clear and unmistakable error in assigning separate ratings for each hand and that a single rating was warranted. Nevertheless, on review, the Board finds that the RO misapplied the rating schedule to this Veteran's disability. Specifically, the RO discussed arthritis under DC 5003, which discusses major and minor joints, while this Veteran's psoriatic arthritis is rated pursuant to DC 5009. DC 5009 pertains to arthritis, other types, which is to be rated under DC 5002, rheumatoid arthritis. Under DC 5002, disability ratings are assigned based on whether the arthritis is an active process or manifested by chronic residuals, whichever is higher. In other words, the involvement of minor versus major joints is inapplicable to this Veteran's diagnosis. Here, there is no evidence of substantial improvement and the rating schedule was used improperly by the RO. Accordingly, restoration of the 10 percent rating for psoriatic arthritis of each hand, effective August 1, 2015, is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 4.124a, DC 5009. REASONS FOR REMAND A remand is necessary to provide the Veteran with adequate VA examinations to help determine the likely etiology of the claimed neck, bilateral elbow, bilateral hip, and bilateral foot disabilities. Additionally, an examination is necessary to determine the current severity of the diagnosed bilateral hand psoriatic arthritis. Service connection claims In April 2019, the Veteran underwent multiple examinations for the claimed neck, bilateral elbow, bilateral hip, bilateral foot. The examiner who conducted all examinations opined that the diagnosed osteoarthritis in these joints was less likely than not related to psoriasis because osteoarthritis was a different type of arthritis than that of psoriatic arthritis. However, the examiner failed to consider probative evidence such as October 1996 treatment records that specifically attributed the left elbow limited motion to psoriasis. Additionally, the examiner did not answer the "less likely" or "at least likely" question regarding any potential aggravation and simply concluded that there was no aggravation of the diagnosed arthritis since 1998 when it was first diagnosed. However, the April 2019 examination reports showed that no diagnostic studies were conducted, and as such, this examiner's statements were unsubstantiated or supported by any medical evidence. Specifically, the Veteran credibly reported gradual worsening of his disabilities. Accordingly, new VA examinations with all necessary studies are necessary prior to deciding the claims on the merits. Increased Rating Claims During the 2021 hearing, the Veteran reported that his service-connected bilateral hand psoriatic arthritis had worsened. Accordingly, a new VA examination is necessary. Moreover, the issue of entitlement to a TDIU is intertwined with the remanded claims. The matters are REMANDED for the following action: 1. Ensure all outstanding VA treatment records are associated with the claims file. 2. Provide the Veteran with new VA examinations to help determine the likely etiology of the claimed neck, bilateral elbow, bilateral hip, and bilateral foot disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed neck, bilateral elbow, bilateral hip, and bilateral foot disabilities. In doing so, obtain updated x-rays and/or any other studies deemed necessary. (b) For each currently diagnosed neck, bilateral elbow, bilateral hip, and bilateral foot disability, provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that it was caused OR aggravated by the service-connected psoriasis or psoriatic arthritis. **In doing so, the examiner is asked to consider Medical Treatment Record - Non-Government Facility dated on 10/09/1996, which specifically attribute the left elbow limitation of motion to psoriasis. In addition, the examiner is asked to conduct any studies deemed necessary to determine whether any aggravation of the above-diagnosed disabilities resulted from psoriasis or psoriatic arthritis. A complete rationale should be provided for all opinions for both causation AND aggravation. 3. Thereafter, provide the Veteran with a VA examination to help identify the current severity of the right- and left-hand disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the right- and left-hand disabilities throughout the pendency of the appeal from May 2011, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. (Continued on the next page) **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. 4. Thereafter, conducted any other development necessary and readjudicate the remanded claims, to include entitlement to a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.