Citation Nr: 21075374 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-14 416 DATE: December 20, 2021 ORDER Restoration of a 20 percent rating for peripheral neuropathy of the right lower extremity (RLE) is granted, effective January 4, 2020. From September 18, 2015, entitlement to an initial rating of 20 percent for peripheral neuropathy of the left lower extremity (LLE) is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the LLE is remanded. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the RLE is remanded. FINDINGS OF FACT 1. The evidence of record at the time of the reduction failed to demonstrate a sustained improvement in the Veteran's RLE peripheral neuropathy under the ordinary conditions of life and work. 2. From September 18, 2015 to January 4, 2020, the Veteran's peripheral neuropathy of the LLE was productive of functional loss that more closely approximated at least moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating for peripheral neuropathy of the RLE, effective January 4, 2020, are met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 8520, 8720. 2. The criteria for an initial rating of at least 20 percent for peripheral neuropathy of the LLE, effective September 18, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 8520, 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1988 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In August 2020, the AOJ granted service connection for post-traumatic stress disorder, and thus the appeal as to that issue has been resolved in full. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) Also in August 2020, the AOJ reduced the Veteran's rating for peripheral neuropathy of the right lower extremity to 10 percent disabling, effective January 4, 2020. Of note, the AOJ raised the Veteran's rating for peripheral neuropathy of the left lower extremity from 10 to 20 percent disabling. Thus, the Board has recharacterized the issues on appeal to include the propriety of the reduction in rating from 20 to 10 percent for peripheral neuropathy of the RLE, the initial rating of 10 percent for peripheral neuropathy of the LLE, and entitlement to an increased rating of greater than 20 percent for peripheral neuropathy of the RLE and LLE. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (reductions are distinct from increased rating claims). Although the Veteran did not separately appeal the propriety of the reduction, the Board finds that issue intertwined with the increased rating issue on appeal and thus it is addressed below. The Board has bifurcated the issues on appeal to afford the Veteran a favorable decision without delay. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion). 1. Entitlement to restoration of a 20 percent rating for peripheral neuropathy of the RLE, effective January 4, 2020. As noted above, the Board finds that the record raises a claim for the restoration of the Veteran's 20 percent rating for peripheral neuropathy of the RLE. In March 2016, the AOJ granted service connection for peripheral neuropathy of the left and right lower extremities as secondary to residuals of injury to the dorsal spine. Disability ratings of 10 percent and 20 percent, respectively, were assigned to the left and right lower extremities, effective September 18, 2015. See March 2016 Rating Decision. In August 2020, the AOJ reduced the Veteran's rating for peripheral neuropathy of the right lower extremity to 10 percent disabling, effective January 4, 2020, based on the January 2020 Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ). The Veteran is currently in receipt of a reduced 10 percent rating under DCs 8520 (sciatic nerve) and 8720 (popliteal nerve) for peripheral neuropathy of the RLE, effective January 4, 2020 (reduced from an initial rating of 20 percent, effective September 18, 2015). See August 2020 Rating Decision (noting, also, that disabilities of the sciatic and outer popliteal nerves have been compounded to the highest possible rating.) See 38 C.F.R. § 4.124a. Under DCs 8520 and 8720, a 10 percent rating is warranted for mild incomplete paralysis, and a 20 percent rating is warranted for moderate incomplete paralysis. Congress has provided that a veteran's disability rating shall not be reduced unless improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. The United States Court of Appeals for Veterans Claims has consistently held that when an AOJ reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999). Where a rating has been in effect more than five years, benefits will not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued. Ratings on account of diseases subject to temporary or episodic improvement, such as manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 the observed improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). Initially, the Board observes that the Veteran's peripheral neuropathy of the right lower extremity was rated as 20 percent disabling for less than five years at the time of the January 2020 reduction. The March 2016 VA compensation and pension medical examination report noted that the Veteran's incomplete paralysis of the nerves peripheral to the right lower extremity was moderate. See March 2016 Peripheral Nerves Conditions DBQ. The subsequent, January 2020, VA-contracted examination noted that the Veteran's peripheral neuropathy had generally worsened, without detailed discussion of each extremity. The examiner indicated that the Veteran's incomplete paralysis of the nerves peripheral to the right lower extremity was mild, when they had previously been marked as moderate. As with the 2016 exam, the examiner noted that the Veteran requires a cane due to his peripheral neuropathy, also noting that his physical disabilities made standing extremely difficult, limiting the Veteran's ability to function in his job. Upon review of the evidence, the Board finds that it weighs against a finding of an improvement in the Veteran's peripheral neuropathy of the RLE at the time of the reduction under the ordinary conditions of life and work. Specifically, the August 2020 action that reduced the ratings was based on a single VA examination in January 2020 in which the RO merely stated that the Veteran showed sustained improvement. The RO, however, failed to consider and discuss whether any material improvement would be maintained under the ordinary conditions of life, nor did the RO make a specific determination as to whether the January 2020 examination supporting the reduction was full and complete. Moreover, the Board is not persuaded that actual improvement of the Veteran's disability under the normal circumstances of life and work at the time of the reduction in question has been established by a preponderance of the evidence. As noted previously, the January 2020 examiner found the Veteran's peripheral neuropathy worsened, without further discussion. Additionally, the examiner noted cane usage, extreme difficulty standing, and limiting the Veteran's ability to function in his job. Thus, the variance in evaluation of functional limitation to the right lower extremity is consistent with different examiners describing his disability in different terms. Consequently, the issue is appropriate for application of the benefit-of-the-doubt doctrine. See 38 C.F.R. § 4.2; 38 C.F.R. § 3.102. Accordingly, the criteria for restoration of the Veteran's 20 percent rating for peripheral neuropathy of the RLE are met, effective January 4, 2020. 2. From September 18, 2015, entitlement to an initial rating of 20 percent for peripheral neuropathy of the left lower extremity (LLE) is granted. The Veteran is also currently in receipt of a recently increased initial 20 percent rating under DCs 8520 (sciatic nerve) and 8720 (popliteal nerve) for peripheral neuropathy of the LLE, effective January 4, 2020 (increased from an initial rating of 10 percent, effective September 18, 2015). See August 2020 Rating Decision (noting, also, that disabilities of the sciatic and outer popliteal nerves have been compounded to the highest possible rating.) See 38 C.F.R. § 4.124a. As discussed previously, under DCs 8520 and 8720, a 10 percent rating is warranted for mild incomplete paralysis, and a 20 percent rating is warranted for moderate incomplete paralysis. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Board observes that the June 2017 Back Conditions DBQ documents moderate intermittent pain, paresthesias and/or dysthesias, numbness, and indications of moderate radiculopathy of the LLE. In addition, both the June 2017 DBQ and the earlier, March 2016, DBQ document the Veteran's non-prescribed use a cane for ambulation. See, e.g., March 2016 Peripheral Nerves Conditions DBQ. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions and incomplete paralysis. The Board thus finds that the initial level of impairment is most analogous to moderate incomplete paralysis. As such, the Board finds that the preponderance of the evidence is in favor of the Veteran's claim for an increased initial compensable rating and that the appropriate initial rating is 20 percent disabling. In granting such a rating, the Board finds that benefit of the doubt doctrine is applicable only insofar as the initial rating is extended back to the beginning of the appeals period, given the proximity to the earliest documentation of moderate impairment. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 3.. Entitlement to a TDIU is remanded. 4. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the LLE is remanded. 5. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the RLE is remanded. The issue of entitlement to a TDIU is explicitly raised by the record and is part and parcel of the increased rating claims on appeal. See August 2017 Attorney Correspondence [styled as "ADDENDUM TO VA FORM 21-0958, NOTICE OF DISAGREEMENT"]. As noted above, the Board bifurcates the issue of entitlement to increased ratings for peripheral neuropathy of the RLE and LLE so as to afford the Veteran favorable resolution of the above-discussed restoration of compensation for the RLE and increased initial rating of the LLE without delay, while the intertwined TDIU and increased ratings claims are further developed on appeal. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion); see also Brambley v. Principi, 17 Vet. App. 20 (2003). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Give the Veteran an additional opportunity to identify and/or submit any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Provide the Veteran and his representative a VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability) with instructions that it should be completed in order to assist with the adjudication of his TDIU claim. An appropriate period of time should be allowed for response. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include obtaining additional examinations, if necessary), the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.