Citation Nr: 21073707
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 17-50 970
DATE: December 10, 2021

ORDER

As the reduction from 20 percent to zero percent, effective March 16, 2017, for lumbar radiculopathy (sciatic nerve) of the right lower extremity (RLE) was improper, the appeal to restore the 20 percent rating is granted.

As the reduction from 20 percent to zero percent, effective March 16, 2017, for lumbar radiculopathy (sciatic nerve) of the left lower extremity (LLE) was improper, the appeal to restore the 20 percent rating is granted.

Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only, is denied.

REMANDED

Entitlement to service connection for anemia, to include as secondary to service-connected disabilities, is remanded.

Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded.

Entitlement to a compensable rating for surgical scars of the right and left knees and left ankle is remanded.

FINDINGS OF FACT

1. At the time of the rating reduction, the evidence did not clearly establish that sustained material improvement was demonstrated for the Veteran's lumbar radiculopathy of the sciatic nerve affecting the bilateral lower extremities. 

2. The Veteran's service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes of a severity specified by regulation, severe burn injury, or amyotrophic lateral sclerosis. 

3. The Veteran's service-connected disabilities do not result in ankylosis of one or both knees or hips.

CONCLUSIONS OF LAW

1. The reduction of the disability rating for RLE lumbar radiculopathy (sciatic nerve) from 20 percent to zero percent was improper; the 20 percent disability rating is restored effective March 16, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.10, 4.13, 4.124a, Diagnostic Code 8520.

2. The reduction of the disability rating for LLE lumbar radiculopathy (sciatic nerve) from 20 percent to zero percent was improper; the 20 percent disability rating is restored effective March 16, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.10, 4.13, 4.124a, Diagnostic Code 8520.

3. The criteria are not met to establish eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.808

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from February 1974 to August 1976. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of which the Veteran was notified in November 2016 and April 2017. 

In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge, and a transcript of the Veteran's hearing testimony is considered as evidence in this appeal.

1. Whether the reduction from 20 to zero percent for service-connected RLE lumbar radiculopathy (sciatic nerve) effective March 16, 2017, was proper.

2. Whether the reduction from 20 to zero percent for service-connected LLE lumbar radiculopathy (sciatic nerve) effective March 16, 2017, was proper.

The Veteran contends the reduction of his evaluations for service-connected right and left radiculopathy improper because his symptoms had not improved, noting he had pain and burning sensations. See Hearing Transcript (July 2021).  

The Board finds that the reduction was improper as the evidence of record at the time of the reduction did not clearly establish sustained material improvement in the ability to function under the ordinary conditions of life and work.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(a), 3.344, 4.3, 4.104, Diagnostic Code 8520.

When determining whether a reduction was proper, there are two sequential questions that must be addressed.  First, whether the agency of original jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105.  If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344.

With regard to the initial question, when 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, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  A veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons for the action. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing.  38 C.F.R. § 3.105(e), (i).

If additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires.  Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record.  If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires.  38 C.F.R. § 3.105.

Here, because prior to the reductions in question a combined total (100 percent) disability rating was already in effect and the rating reductions did not result in any decrease in the actual total combined rating or the monthly VA disability compensation received by the Veteran, which remained the same, then the procedural safeguards of 38 C.F.R. § 3.105(e) are not applicable. See VAOPGCPREC 71-1991. 

Thus, the Board turns to the substantive requirements for rating reductions. 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. 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, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993).  Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether an improvement in a disability has actually occurred but also if 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).

It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.  38 C.F.R. § 4.1.  If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes.  38 C.F.R. § 4.2.  When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms.  38 C.F.R. § 4.13.  

Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.

As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met.  38 C.F.R. § 3.344; Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344 (a) and (b). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction.  Brown, 5 Vet. App. at 418. Regarding the Veteran's service-connected bilateral lower extremity radiculopathy, the 20 percent evaluations were assigned effective January 18, 2013. The zero percent evaluation, effective March 16, 2017, was thus in effect for less than five years.  Hence, the additional requirements of 38 C.F.R. § 3.344(a) and (b) are therefore not for application.

Thus, a single examination showing improvement may provide an adequate basis for a reduction in the rating.  38 C.F.R. § 3.344(c).  In determining whether a reduction was proper, the Board must focus on evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved.  Dofflemyer, 2 Vet. App. at 281-282.

Radiculopathy of the sciatic nerve is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 rates incomplete or complete paralysis of the sciatic nerve. A 10 percent evaluation is assigned for mild incomplete paralysis; and  a 20 percent evaluation is assigned for moderate incomplete paralysis. Also, a zero percent rating is provided in every instance where the rating schedule does not. See 38 C.F.R. § 4.31.

To reduce an evaluation, an adjudicator must find the following: (1) Based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where reasonable doubt remains, the prior disability rating in effect is continued.

Here, the 20 percent ratings in question were established by a December 2015 rating decision based upon a September 2015 VA spine examination that identified moderate radiculopathy of the sciatic nerve (involving nerve roots at the L4-S3 levels of the spine), manifested by mild constant pain and numbness with severe intermittent pain and severe abnormal nerve sensations such as burning or prickling (called paresthesias and/or dysesthesias in medical terms). This examination identified only involvement of the sciatic nerve, not the femoral nerve. 

Then, in March 2017, an additional VA examination of the Veteran's spine condition was performed. At this time, radiculopathy of the bilateral lower extremities was confirmed and noted to be manifested by mild constant pain only. The involved nerve roots were identified as the L2-L4 nerve roots of the femoral nerve. The sciatic nerve was not noted to be involved. On this basis, the Regional Office (RO) then added new 20 percent ratings for the femoral nerve radiculopathy of the right and left lower extremities, and reduced the ratings to zero percent (but did not sever service connection) for sciatic nerve radiculopathy effective as of the date of the examination that showed no sciatic involvement. Rating decision (April 2017). 

A more recent June 2019 VA examination specifically for diabetic peripheral neuropathy (where the Veteran's diabetes has not been granted service connection) states that the Veteran has experienced worsening burning and stinging pain with numbness and tingling of all extremities due to poorly controlled diabetes for many years. This was noted to result in moderate incomplete paralysis of the sciatic nerve affecting both the right and left lower extremities. Somewhat confusingly, the examiner checked the box on the examination report form to indicate that the femoral nerve was also affected, but then noted that the femoral nerve was normal for both the right and left lower extremities. The Board finds that to be inconclusive as to the involvement of the femoral nerve, but that rating has not been reduced and is beyond the scope of the present appeal. 

The Board also acknowledges that the June 2019 examiner explicitly found that the Veteran's service-connected lumbar radiculopathy and nonservice-connected diabetic neuropathy symptoms "overlap and preclude differentiation." VA examination, June 2019. Where it is not possible to separate the effects of service-connected and nonservice-connected conditions, VA must resolve reasonable doubt in favor of the Veteran and attribute all such symptoms as associated with the service-connected disability, and the Board does so here. Mittleider v. West, 11 Vet. App. 182 (1998).  

Nonetheless, as concerns the effect of a potential change of diagnosis in the nerve involved (between the sciatic and femoral nerve roots), where "any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms." 38 C.F.R. § 4.13. "The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted." Id. 

In all, the Board finds that the mere change in identification of the nerve affected by the Veteran's lower extremity radiculopathy does not clearly warrant the conclusion that sustained improvement has been demonstrated. Moreover, the record does not show that any material improvement found at the time of the March 2017 examination is maintained under the ordinary conditions of life, where subsequent examination continues to find the sciatic nerve is involved in the Veteran's service-connected lumbar radiculopathy affecting the bilateral lower extremities, and results in at least moderate intermittent pain, numbness, paresthesias and/or dysesthesias for both lower extremities. VA examination, June 2019. As such, the Board finds that VA did not properly meet the requisite burden of proof in showing sustained material improvement to reduce these ratings for the sciatic nerve radiculopathy and, therefore, restoration of the prior 20 percent ratings is warranted for each lower extremity. 

Accordingly, the appeal is granted.

3. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only, is denied. 

The Veteran reports that he can barely walk without assistive devices (braces, canes, walker, wheelchair) and requires a caretaker to help with his daily routines, and he believes that he should qualify for the automotive adaptive benefit on this basis. Hearing Transcript (July 2021). 

Financial assistance in acquiring an automobile (or other conveyance) with adaptive equipment is available only where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; or (5) amyotrophic lateral sclerosis (ALS).

Here, the Veteran does not have a service-connected vision impairment, burn injury, or ALS. He also does not have a service-connected upper extremity disability affecting use of the hands. Thus, the remaining eligibility criterion for consideration is whether he has anatomical loss or permanent loss of use of one or both feet.

The applicable regulation does not further define the phrase "loss or permanent loss of use." Under the eligibility criteria found in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, the appellant must show that he or she had anatomical loss of a foot, or permanently lost the use of a foot due to service-connected disability.

The Board notes that the term "loss of use" is used in several places in various statutes and regulations describing disability ratings by VA. In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.

A less restrictive definition is written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing. That regulation specifies that "loss of use" was defined by the adjacent modifier, "such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair." See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017).

However, this modifier is noticeably absent from 38 U.S.C. § 3901 and 38 C.F.R. § 3.808 and had Congress or the Secretary of VA wished for such a definition to apply to the legal requirements for automobile and adaptive equipment benefits, it presumably would have been included. As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of functional use of the body part(s), with any need of assistive devices being relevant to, but not dispositive of the question of whether the Veteran experiences a permanent loss of use.

In this case, service connection is in effect for the following disabilities: major depressive disorder, patellofemoral degenerative joint disease of the right and left knees, bursitis of the right and left ankle, intervertebral disc syndrome (IVDS) of the lumbar spine, lumbar radiculopathy affecting the bilateral lower extremities (femoral and sciatic nerves), pseudofolliculitis barbae, chronic epididymitis, arthritis with pain and limitation of motion of the right and left knees, and surgical scars for the right and left knee and left ankle. The Veteran has been in receipt of a combined 100 percent disability rating since November 2016, and prior to that a total disability rating due to individual unemployability (TDIU) since January 2013. 

However, considering the relevant evidence in its entirety, the Board finds that the Veteran's service-connected disabilities do not result in such a severe degree of functional impairment as to approximate "permanent loss of use" of at least one foot.

Instead, the Veteran confirms that he has not permanently lost the use of a foot due to service-connected disability, nor have any of his medical providers told him of such severe impairment as loss of use. See Hearing Transcript (July 2021). The evidence shows alternatively that the bilateral ankle disabilities result in chronic weakness, pain, and stiffness, and the Veteran has difficulty walking or standing over a few minutes without rest, and difficulty walking on uneven surfaces, but the Board finds that difficulty in walking is not of the same severity as loss of use of the foot. See VA examination (June 2019). The Board also acknowledges that the Veteran has undergone amputation of the right great toe in January 2021. However, this is a result of a diabetic ulcer of the toe rather than a service-connected disability. See VA treatment records (January 2021). Even so, after the toe amputation, and despite significant back, hip, and knee pain, the Veteran has remained ambulatory despite difficulty walking, an unsteady gait, and use of a walker. See, e.g., VA treatment record (April & February 2021). 

In all, a preponderance of the evidence demonstrates that, while the Veteran has significant pain, weakness, and functional impairment from his service-connected bilateral lower extremity disabilities, he retains the ability to walk and make use of his feet, even if assisted by various devices. Therefore, the weight of the evidence is against finding that the Veteran has permanent loss of use of a foot due to service-connected disability. In the absence of such severe impairment of one or both feet, the criteria to establish eligibility for financial assistance for the purchase of an automobile with adaptive equipment are not met. 38 C.F.R. § 3.808(b).

Finally, the Board turns to the criteria to establish eligibility for financial assistance for the purchase of automobile adaptive equipment only, which requires ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007).

In this case, as shown above, the Veteran does have numerous service-connected disabilities affecting both lower extremities. He does not have service-connected disability of either hip joint but does have service-connected patellofemoral degenerative joint disease and arthritis with limitation of motion of the right and left knees. However, the evidence confirms that the Veteran retains range of motion of both knee joints, which although limited, does not equate to ankylosis or immobility of either knee joint. VA examinations in August 2016 and June 2019 confirm no ankylosis is present for either knee joint. Thus, in the absence of ankylosis of one or both knees, the criteria are also not met to establish eligibility for automotive adaptive equipment only. 

In reaching the conclusions above, the Board recognizes that the Veteran experiences impairment due to his service-connected bilateral lower extremity disabilities that could potentially benefit from automobile adaptive equipment in some form. However, eligibility for this benefit is determined by the existing law and regulations that require the Veteran to meet at least one of the six criteria enumerated under 38 C.F.R. § 3.808. The claim cannot be granted based upon need or usefulness alone, without meeting the underlying eligibility criteria. Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet, does not have ankylosis of his knees or hips, and does not have any of the other physical disabilities listed among the relevant criteria, he does not qualify as eligible for financial assistance in the purchase of an automobile or other conveyance with adaptive equipment, or for adaptive equipment only, under 38 C.F.R. § 3.808. 

Accordingly, the appeal is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b).

 

REASONS FOR REMAND

In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions.  Neither the Veteran's credibility nor any lack thereof should be presumed in this remand.

4. Entitlement to service connection for anemia, to include as secondary to service-connected disabilities, is remanded.

The Veteran reports that his anemia was discovered during his active military service. Hearing Transcript (July 2021). He alternately contends that it is secondary to service-connected disability, specifically the sciatic nerve disability and the related surgeries. Id. The Board cannot make a fully informed decision on the issue of service connection for anemia because the medical record is insufficient to address whether any current anemia disability had its onset during service, within one year after service, or is secondary to service-connected disability. 

5. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected disabilities, is remanded.

Similarly, the Board cannot make a fully informed decision on the issue of service connection for ED because no VA examiner has opined whether the Veteran's diagnosed ED disability is secondary to his service-connected chronic epididymitis, back disability, and/or lumbar radiculopathy. 

6. Entitlement to a compensable rating for surgical scars of the right and left knees and left ankle is remanded.

At his Veteran's July 2021 hearing, the Veteran testified that his surgical scars are painful and tender and that the scars were unstable such that there was a frequent loss of covering of the skin over the scar. He clarified that the implanted surgical hardware (pins, rods, or bolts) may protrude to the top of the skin and cause openings in the skin at times. The Veteran is competent to report what he can see with his own eyes and report what sensations he feels (such as pain), but here the Board lacks clarity as to the specifics of the reported scarring because the Veteran reports, "I have a scar from close to my hip all the way down toward my ankle" whereas only the specific surgical scars of the knees and left ankle are subject to service connection. Hearing Transcript (July 2021). 

Furthermore, the most recent VA examination regarding the Veteran's scars in June 2019 is incomplete because the examiner described only the scars of the left anterior ankle and the left lower leg and left posterior calf. The examiner did not note or otherwise describe the service-connected surgical scar of the right knee. At the time of this examination, the Veteran denied pain or other complication from the surgical scarring. 

As the Veteran has asserted that the surgical scar disabilities have increased in severity since the Veteran was last examined by VA, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the service-connected scarring.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination for his anemia. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below.

The examiner is asked to provide a response to each of the following:

a.	Whether the Veteran now has, or has he had since or approximate to January 2017, primary anemia or anemia that is other than "primary." Explain.

b.	If yes, whether it at least as likely as not (i) manifested or had its onset during the Veteran's active service; (ii) manifested to a compensable degree within one year after his service; (iii) was it noted in service with continuity of symptomatology since service; or (iv) is it otherwise related to in-service injury, event, or disease. Explain. Expressly consider the Veteran's contention that anemia was first identified during service and he has experienced symptoms ever since. 

c.	If yes to (a), then address whether the Veteran's chronic anemia is at least as likely as not (i) proximately due to a service-connected disability or (ii) aggravated (worsened beyond its natural progression) by a service-connected disability.

In providing the requested opinions, consider the Veteran's description of his in-service symptoms and/or recollection of laboratory findings as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or otherwise implausible? Please provide a medical rationale or the reasoning used to support each opinion offered.

2. Obtain an addendum opinion regarding whether the Veteran's erectile dysfunction is at least as likely as not (a) proximately due to service-connected disability or (b) aggravated beyond its natural progression by service-connected disability, expressly to include opinions regarding the service-connected IVDS, lumbar radiculopathy, and/or chronic right epididymitis. 

3. Schedule the Veteran for an examination to determine the current severity of his service-connected surgical scars of the right and left knees and left ankle. The examiner should provide a full description of each scar and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, with particular attention to the Veteran's report of pain and frequent loss of covering of the skin associated with these scars (per July 2021 hearing testimony). 

4. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached.  The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

(Continued on the next page)

 

5. Readjudicate.

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. McDonald, 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.