Citation Nr: 21074273 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-11 027A DATE: December 14, 2021 ORDER The reduction of the 70 percent rating for right arm ulnar nerve neuropathy was improper; entitlement to restoration of the 70 percent disability rating from November 1, 2017 is granted. FINDING OF FACT 1. In an August 2017 rating decision, the Veteran's disability rating for right arm ulnar nerve neuropathy (right arm neuropathy) was reduced from 70 percent to 10 percent, now 30 percent, effective November 1, 2017. 2. At the time of the August 2017 rating decision, improvement in the Veteran's disability under the ordinary conditions of life had not been demonstrated. CONCLUSION OF LAW The rating reduction for the right arm neuropathy from 70 percent to 10 percent, now 30 percent, effective November 1, 2017 was not proper. 38 U.S.C. §§ 1155, 5107, 5109A, 5112; 38 C.F.R. §§ 3.105, 4.2, 4.10, 4.13, 4.124a, Diagnostic Codes 8513, 8516. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to May 1978. This matter is on appeal to the Board of Veterans' Appeals (Board) from an August 2017 rating decision. A hearing was held with the undersigned Veterans Law Judge in August 2021. By way of background, the Veteran's disability rating for right arm neuropathy was increased to 70 percent disabling effective February 3, 2014 in an April 2014 rating decision. An August 2014 rating decision continued the rating. In a May 2017 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) proposed to reduce the rating to 10 percent. An August 2017 rating decision effectuated the reduction effective November 1, 2017. The Veteran timely appealed. A February 2018 rating decision increased the rating from 10 percent to 30 percent from November 1, 2017. The Veteran contends that his right arm neuropathy has not improved since his in-service injury, and reduction was not warranted. When reduction is considered warranted by the evidence and would result in reduction or discontinuance of compensation payments currently being made, certain procedural guidelines must be followed: first, there must be a rating action proposing the reduction; then the veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. 38 C.F.R. § 3.105 (e). Here, the Veteran was informed of the proposal to reduce his benefits in a May 2017 rating decision. In a separate May 2017 letter, he was provided with instructions on how to appeal, and informed that he could request a hearing within 30 days. The Veteran was also provided with 60 days to submit additional evidence before the RO issued a rating decision in August 2017 that reduced his benefits. The Veteran did not request a hearing. As such, the procedural safeguards have been satisfied with regards to the reduction. With the proper procedural steps completed, the question then becomes whether the reduction itself was proper. A rating reduction is not proper unless a veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of determining whether actual improvement was demonstrated. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate the retention of the higher evaluation is warranted; rather, VA must show by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In any case involving a rating reduction, the factfinder must ascertain, based upon a review of the entire record, whether the evidence shows an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344 (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b). The requirements of 38 C.F.R. § 3.344 do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Yet, without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421. Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. "[T]he Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" See Green v. Nicholson, 21 Vet. App. at 512 (2006). Here, the Veteran's 70 percent rating had been in place from February 3, 2014 to November 1, 2017, a period less than five years. Regardless, the law requires the RO to find that an improvement in the Veteran's disability has actually occurred and reflects an improvement in his ability to function under the ordinary conditions of life and work. Prior to the reduction, the Veteran was rated under Diagnostic Code (DC) 8513 for paralysis of all radicular groups. Under DC 8513, a disability rating of 20 percent is assigned for mild incomplete paralysis all radicular groups on the dominant and nondominant sides. A disability rating of 30 percent is assigned for moderate incomplete paralysis of the nondominant upper extremity, and a disability rating of 40 percent is assigned for moderate incomplete paralysis of the dominant upper extremity. A disability rating of 60 percent is also assigned for severe incomplete paralysis of the nondominant upper extremity, and a disability rating of 70 percent is assigned for severe incomplete paralysis of the dominant upper extremity. A disability rating of 80 percent is assigned for complete paralysis of the nondominant upper extremity, and a disability rating of 90 percent is assigned for complete paralysis of the dominant upper extremity. 38 C.F.R. § 4.124a. The Veteran received a 70 percent rating for severe incomplete paralysis of the dominant upper extremity. As of the date of reduction, the Veteran has been rated under DC 8516. Under DC 8516, ulnar nerve disability of the minor extremity warrants a maximum 50 percent rating when there is complete paralysis with the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. For incomplete paralysis, a 30 percent rating is warranted when severe, 20 percent when moderate, and 10 percent when mild. 38 C.F.R. § 4.124a. The Veteran received a 10 percent rating for mild incomplete paralysis. Turning to the evidence, the increase to 70 percent in 2014 was largely based on an April 2014 VA examination. In that examination, it was reported that since his last examination in November 2013, the Veteran had continued weakness, difficulties with grip and grasp, opening and closing jars/bottles/medicine containers, shaving, bathing, dressing, and toileting. He used pain medication 3 times daily to ease the nerve pain. He had undergone a nerve decompression procedure in 2008, but at the time there were no surgical interventions indicated. He experienced constant or intermittent moderate pain and severe paresthesias and numbness of the right upper extremity (the major extremity). He had decreased muscle strength in elbow flexion and extension as well as in grip and pinch each rated a 4 out of five (active movement against some resistance). Muscle atrophy of the forearms was present. Sensation was decreased at the forearm and hand/fingers. He had trophic changes of loss of hair and smooth skin to the forearm. The examiner indicated there was mild incomplete paralysis of the median nerve and severe incomplete paralysis of the ulnar nerve. EMG studies conducted in November 2013 showed mild right median nerve sensory neuropathy and marked ulnar neuropathy with conduction block in all segments below the elbow. As for functional impact, the examiner described that the Veteran is unable to grip or grasp repetitively and will require an adaptive equipment evaluation by occupational therapy; he has difficulties with buttoning, zipping, tying, toileting, shaving, cutting food, and using doorknobs/jars/lids/medicine bottles. In an August 2014 examination, the Veteran was diagnosed with moderate right ulnar and medial neuropathy. It was explained that he sustained a right elbow injury requiring excision of the radial head/bone fragments during service in 1978 and underwent an ulnar release in 2008. He reported pain when resting his elbow on a surface, but otherwise denied pain. He denied swelling, clicking/popping, giving way, catching, or locking. He also denied pain down the forearm into the hand. He endorsed intermittent tingling in the right-hand fingers though it had become less frequent. His major complaint was weakness in the forearm and hand. He had weakened grip strength and frequently dropped items. He had difficulty with lifting because he was unable to support much weight. He had trouble with twisting or turning such as opening doors, jars, or medication bottles. He lived independently but had difficulty dressing, such as with buttons or zippers. He had difficulty toileting and bathing independently. The examiner indicated the Veteran had moderate intermittent pain and mild paresthesias and numbness. There was decreased elbow flexion and extension and wrist extension rated a 4 out of 5 (active movement against some resistance) and the grip and pinch strength were rated as 3 out of 5 (active movement against gravity). Muscle atrophy of the forearm and dorsal right hand were shown. There were no trophic changes and sensation testing was normal. The examiner indicated there was moderate incomplete paralysis of the median nerve and ulnar nerve. Based on these findings, an August 2014 rating decision continued the 70 percent rating. In April 2017, the Veteran underwent another VA examination. The diagnosis noted was right arm ulnar nerve neuropathy. The examiner noted several VA treatment records that include complaints of continued right arm pain, weakness, and numbness from 2008 to 2014. At the time, the Veteran endorsed occasional elbow pain especially during bad weather. He endorsed right hand small finger numbness and mild hand weakness. He occasionally wore a wrist brace 2 to 3 times monthly. The examiner indicated the Veteran had no pain and mild paresthesias and numbness. He had decreased grip strength rated a 4 out of 5 but all other muscle strength testing was normal. There was no muscle atrophy. He had decreased sensation of the hand and fingers, but it was noted to be normal at the forearm. The examiner indicated a normal median nerve and mild incomplete paralysis of the ulnar nerve. He remarked that the Veteran's right arm examination showed significant decreased small finger sensation, a mild decreased right finger and interosseous muscle strength, and that the neuropathy appeared stable. VA treatment records reflect ongoing treatment with neurology. Records from 2014 show pain, numbness, and weakness that had not been alleviated with many years at attempts at treatment. A December 2017 record shows right forearm weakness and limited movement, and his diminished strength was consistent with prior evaluations. The provider noted it was unclear why his rating was decreased. While this record was not written until four months after the reduction, it is relevant to show that actual improvement had not been shown. See Dofflemeyer, 2 Vet. App. at 281-82. While the examination findings of the severity of the neuropathy are somewhat variable, a reduction requires evidence of actual improvement. Here, actual improvement in the ordinary conditions in life had not been shown. In fact, actual improvement was not even discussed in the May and August 2017 decisions, indicating that the RO did not undertake the requisite inquiry. At no time did the Veteran indicate that his inability to perform certain activities of daily living as endorsed at other examinations had improved, and the Veteran contends in later correspondence and at his hearing that his condition has never improved. The April 2017 examiner did not address the various discrepancies between his examination report and prior reports, such as a finding of no muscle atrophy and no median nerve neuropathy. Had such significant manifestations actually improved, it would have been reasonable to expect the examiner to recognize such a notable change in condition and address it. Rather, the examiner does not make any reference as to the progression of the Veteran's condition aside from noting that it was stable. Moreover, the examiner did not appear to elicit statements from the Veteran regarding his ability to perform activities of daily living as previous examiners did. For these reasons, the Board finds that the April 2017 examination was not adequate to support a finding that reduction was warranted. In sum, the RO did not make the requisite determination that the Veteran's right arm neuropathy had improved in the ordinary conditions of life, and the evidence at the time of the reduction would not have supported such a determination. Accordingly, reduction was improper, and the 70 percent rating is restored as of November 1, 2017. See Greyzck v. West, 12 Vet. App. 288, 292 (1999) (When the RO reduces a disability rating without following the applicable VA regulations, the reduction is void ab initio). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.