Citation Nr: 21075685 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-21 835A DATE: December 21, 2021 ORDER The restoration of 40 percent for the low back disability, from June 1, 2016, is granted. The restoration of 40 percent for left lower extremity radiculopathy, from June 1, 2016, is granted. REMANDED Entitlement to a compensable disability rating for a low back scar is remanded. FINDINGS OF FACT 1. The RO's decision to reduce the Veteran's evaluation for the low back disability from 40 percent to 20 percent was not supported by the evidence contained in the record at the time of the reduction. 2. The RO's decision to reduce the Veteran's evaluation for left lower extremity radiculopathy from 40 to 10 percent was not supported by the evidence contained in the record at the time of the reduction. CONCLUSIONS OF LAW 1. The evaluation for the service-connected low back disability is restored to 40 percent, from June 1, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5243. 2. The evaluation for the service-connected left lower extremity radiculopathy is restored to 40 percent, from June 1, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.124, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from August 1976 to July 1977. This matter is on appeal from a January 2013 rating decision for the scar and a March 2016 rating decision, wherein the Regional Office (RO) reduced the Veteran's lower back disability from a 40 percent disability rating to 20 percent and the left lower extremity radiculopathy from 40 percent to 10 percent (both effective June 1, 2016). In July 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. There were additional VA records associated with the file since the last supplemental statement of the case (SSOC). Although there is no waiver of RO consideration of this evidence, the Board finds no prejudice to the Veteran as it is granting restoration of the Veteran's reduced ratings on appeal. The Board notes that the Veteran is currently in receipt of a combined 100 percent disability rating. 1. Entitlement to the restoration of a 40 percent disability rating each for (a) the back and (b) left lower extremity radiculopathy. The Veteran has essentially claimed that even though the RO had reduced his back disability and left lower extremity ratings (each rated at 40 percent prior to each being reduced to 20 percent effective June 1, 2016) based on VA examination findings; however, he contends his ordinary conditions of life and work has not improved since he had been granted the two 40 percent disability ratings. For the low back disability, the General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. It provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation would only be warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is granted if the Veteran has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In a September 2014 rating decision, the RO proposed decreasing the lower back disability rating from 40 percent to 20 percent and proposed decreasing left lower extremity radiculopathy disability rating from 40 percent to 10 percent. In a March 2016 rating decision, the RO enacted those reductions, effective June 1, 2016. The United States Court of Appeals for Veterans Claims (Court) has articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining whether the evidence reflects an actual change in the disability. Second, it must determine whether the examination reports reflect such changes were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). Congress has provided that a Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). The Board finds that the RO's decision to reduce the Veteran's evaluations for lower back disability rating from 40 percent to 20 percent and left lower extremity radiculopathy disability rating from 40 percent to 10 percent were not supported by the evidence contained in the record at the time of the reduction (March 2016 rating decision). Per the September 2014 rating decision that proposed reductions, the RO found that the medical evidence from a recent VA examination has demonstrated sustained improvement in these disabilities and that VA and private outpatient treatment records did not show the requirements for higher evaluations. The Board further finds that the subsequent August 2014 VA examination, relied on for the reduction do not reflect an actual change in the ability to function under the ordinary conditions of life and work. Rather, it indicated some improved measured mobility and less severe symptomatology of left lower extremity radiculopathy, but the Veteran's reported continued functional limitations, to include ability to stand, sit, walk, run, climb stairs, and lift things continued in limitation. He also reported increased pain. As such, any measured improvement did not actually reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Board thus finds that the RO reduced the Veteran's ratings without observance of the applicable law. As such, the prior ratings are restored. The previously assigned 40 percent disability rating for the lower back disability and the 40 percent disability rating for left lower extremity radiculopathy are restored, as of June 1, 2016. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for a low back scar is remanded. For the low back scar claim, the AOJ associated additional VA medical records relevant to that claim, specifically a December 2021 VA examination that includes consideration of the service-connected disability. As such, the AOJ must prepare a supplemental statement of the case (SSOC) reviewing that evidence. 38 C.F.R. § 19.31(b)(1). The matters are REMANDED for the following action: The AOJ should consider the December 2021 VA examination evidence and any additional evidence it has associated with the record since the April 2019 statement of the case (SOC). (Continued on the next page) If the claim is not fully granted, the issuance of a SSOC is required. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.