Citation Nr: 21075912
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 18-04 343
DATE: December 21, 2021

ORDER

Entitlement to restoration of a 30 percent rating effective June 1, 2015, for chronic rhinitis is denied.

Entitlement to restoration of a 20 percent rating effective June 1, 2015, for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) is granted.

Entitlement to restoration of a 10 percent rating effective June 1, 2015 for right lower extremity radiculopathy is granted.

Entitlement to restoration of a 10 percent rating effective June 1, 2015, for left lower extremity radiculopathy is granted.

Entitlement to a compensable disability rating for allergic rhinitis is denied.

Entitlement to a disability rating greater than 20 percent for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) is denied.

Entitlement to a disability rating greater than 10 percent for right lower extremity radiculopathy is denied.

Entitlement to a disability rating greater than 10 percent for left lower extremity radiculopathy is denied.

FINDINGS OF FACT

1.  The record evidence shows that the Veteran's allergic rhinitis was not manifested by polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side at any time during the appeal period; as such, the probative evidence of record at the time of the rating reduction demonstrated sustained improvement in allergic rhinitis, including improvement in his ability to function under the ordinary conditions of life.

2.  The record evidence shows that, effective June 1, 2015, improvement in the Veteran's degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) shown on examination did not reflect an improvement in his ability to function under the ordinary conditions of life.

3.  The record evidence shows that effective June 1, 2015, the Veteran's right lower extremity radiculopathy is manifested by mild incomplete paralysis.

4.  The record evidence shows that effective June 1, 2015, the Veteran's left lower extremity radiculopathy is manifested by mild incomplete paralysis.

5.  The record evidence shows that the Veteran, without good cause, failed to report for VA examinations scheduled on December 1, 2020, pertaining to his increased rating claims for allergic rhinitis, degenerative change of the sacroiliac and pubic symphyseal joints, and radiculopathy of the bilateral lower extremities.

CONCLUSIONS OF LAW

1.  The criteria for restoration of a 30 percent rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6522 (2020).

2.  The criteria for restoration of a 20 percent rating effective June 1, 2015, for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.71a, DC 5242 (2020).

3.  The criteria for restoration of a 10 percent rating effective June 1, 2015, for right lower extremity radiculopathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.124a, DC 8520 (2020).

4.  The criteria for restoration of a 10 percent rating effective June 1, 2015, for left lower extremity radiculopathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.124a, DC 8520 (2020).

5.  The claim for a compensable disability rating for allergic rhinitis is denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.655 (2020).

6.  The claim for a disability rating greater than 20 percent for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) is denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.655 (2020).

7.  The claim for a disability rating greater than 10 percent for left lower extremity peripheral neuropathy is denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.655 (2020).

8.  The claim for a disability rating greater than 10 percent for right lower extremity peripheral neuropathy is denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.655 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1948 to July 1952. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which reduced the ratings for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) from 20 percent to 10 percent, chronic rhinitis from 30 percent to zero percent (noncompensable), radiculopathy of the right lower extremity from 10 percent to zero percent, and for radiculopathy of the left lower extremity from 10 percent to zero percent, all effective June 1, 2015.

This matter previously was before the Board in February 2020 when it remanded to the RO for additional development. 

The Board observes that, in Green v. Nicholson, 21 Vet. App. 512, 2006 WL 3438028 (Vet. App.), the United States Court of Appeals for Veterans Claims (Court) held that, in cases where a rating reduction is on appeal, "the Board must determine whether the reduction of the Veteran's disability rating was proper and must not phrase the issue in terms of whether the Veteran was entitled to an increased rating, including whether the Veteran was entitled to restoration of a previous rating." Id. , at pp. 3. The Veteran in Green appealed the Board's denial of a claim for restoration of a 100 percent rating for service-connected prostate cancer. Although the Board recognizes that single-judge memorandum decisions of the Court are not binding precedent, the unpublished single-judge memorandum decision of the Court in Green can be considered persuasive authority in this appeal. The Board next notes that the Veteran asserted in multiple statements submitted during the appeal period, including in May 2015 and on his substantive appeal in January 2018, that the rating reductions were improper and his disability ratings should be increased. Thus, the claims on appeal have been recharacterized as stated above.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

RATING REDUCTIONS

The reduction of a rating has certain procedural requirements that must be followed by the RO if the lower evaluation results in a reduction or discontinuance of compensation payments being made. 38 C.F.R. § 3.105 (e). Here, a rating action proposing such reduction was not warranted because the rating reduction did not result in a reduction or discontinuance of current compensation payments. The Veteran has not alleged otherwise. 38 C.F.R. § 3.105 (e).

Reducing a rating also brings concurrent substantive requirements that must be followed. When a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, VA is required to comply with several 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; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. 38 C.F.R. § 3.344 (a), (b); see 38 C.F.R. § 3.343.

The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain 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 it not only must be determined whether an improvement in disability occurred but whether it 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). Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

1. Entitlement to a restoration of a 30 percent rating effective June 1, 2015, for chronic rhinitis 

In December 2014, a VA rating decision proposed to reduce the disability rating for the Veteran's service-connected chronic rhinitis from 30 percent to noncompensable. In a March 2015 rating decision, VA implemented the proposed rating reduction and reduced the disability rating for service-connected allergic rhinitis from 30 percent to noncompensable effective June 1, 2015. As such, the procedural requirements of 38 C.F.R. § 3.105 (e) were fulfilled. Here, the 30 percent rating assigned to service-connected allergic rhinitis was in effect from June 14, 2010, which was less than 5 years prior to the reduction. Therefore, the heightened standard for reductions delineated in 38 C.F.R. § 3.344 are not applicable.

A December 2010 rating decision increased the Veteran's evaluation for allergic rhinitis from noncompensable to a 30 percent rating effective June 14, 2010, based on a finding that the Veteran had nasal polyps in his left nasal passage. 

A December 2014 VA examination report documents that the Veteran had allergic rhinitis with symptoms manifesting on contact with pollen, dust and on hot, windy days, including congestion, discomfort or pain in the sinuses and runny nose. Physical examination showed there was not greater than 50 percent obstruction of the nasal passage on either side due to rhinitis, no complete obstruction, no permanent hypertrophy of the nasal turbinates, no nasal polyps, and no granulomatous conditions. The examiner recognized some functional impact in the form of limitations in activities that involve significant concentration during active symptoms of exacerbation. The examiner concluded that the Veteran's current allergic rhinitis presentation is that of allergies during seasonal changes. The examiner noted specifically that the Veteran has had many surgeries for his sinuses and his symptoms have improved since then. 

After a careful review of the evidence of record, the Board finds that the rating reduction was proper and restoration of a 30 percent rating for allergic rhinitis is not warranted. The Board finds that the December 2014 VA examination was thorough, fully adequate, and complete, and was at least as thorough, fully adequate, and complete as the July 2010 examination upon which the 30 percent rating was assigned originally. For example, both examinations addressed the presence of polyps in nasal passages as well as obstructions or lack thereof. The Board also finds that the December 2014 examination shows actual improvement in the Veteran's allergic rhinitis. Specifically, objective medical evidence derived on physical examination shows the Veteran no longer had polyps or obstruction of the nasal passages. As such, without polyps or nasal obstruction, the criteria for a compensable evaluation under DC 6522 was not met, nor could have been met. Examination in December 2014 also reflects that the Veteran only experienced seasonal allergy symptoms, resulting in symptoms which did not include polyps or nasal obstructions, and no longer required prescription medicine. Furthermore, the examiner noted that the Veteran had undergone an extensive course of treatments, and that the allergic rhinitis had improved. Accordingly, the Board finds that material improvement in the Veteran's allergic rhinitis has occurred. Although the Veteran is competent to state or imply that his symptoms have not improved, he did not do so. In fact, the Veteran himself reported his symptoms are limited to congestion, discomfort or pain of the sinuses and runny nose when exposed to pollen dust, and on hot windy days. In summary, the Board finds that the criteria for restoration of a 30 percent rating effective June 1, 2015, for chronic rhinitis have not been met. 

2. Entitlement to restoration of a 20 percent rating effective June 1, 2015, for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) 

In December 2014, a VA rating decision proposed to reduce the disability rating for the Veteran's degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) ("low back disability") from 20 percent to 10 percent. A March 2015 rating decision implemented the proposed rating reduction and reduced the disability rating for the service-connected low back disability from 20 percent to 10 percent effective June 1, 2015. As such, the procedural requirements of 38 C.F.R. § 3.105 (e) were met. The Board notes the Veteran's 20 percent disability rating was effective January 31, 2012, or less than 5 years prior to reduction. As such, the heightened standard for reductions delineated in 38 C.F.R. § 3.344 are not applicable.

Historically, the Veteran underwent a VA spine examination in May 2013. At the time of the examination, he reported being unable to work in his garden during flare ups, and having increased back pain when walking. He also reported problems with getting up from sitting and prolonged driving. Range of motion testing showed forward flexion to 45 degrees, extension to 30 degrees, left lateral flexion was limited to 20 degrees, right lateral flexion was limited to 20 degrees, left rotation was limited to 15 degrees, and right rotation to 15 degrees. There was evidence of painful motion during this testing. Repetitive movement of the thoracolumbar spine resulted in additional range of motion restriction, manifested by forward flexion limited to 35 degrees and right lateral flexion to 15 degrees. Functional loss was indicated due to factors including less movement than normal, weakened movement and pain on movement. Additional limitations during flare ups were noted to be similar to those described after repetitive use. Tenderness to palpation was indicated. Muscle strength was normal with the exception of some resistance at right hip flexion and right knee extension. There was no muscle atrophy. Sensation was intact to sacral segments. Reflexes were normal. Significantly, the examiner opined that the Veteran is functionally impaired due to his low back disability, noted that the Veteran cannot sustain prolonged activity during a flare up, and feels increased pain when walking or sitting for prolonged periods. The diagnosis was degenerative disc disease of the thoracolumbar spine. As forward flexion of the thoracolumbar spine was limited to 35 degrees at worst during the examination, a rating of 20 percent was assigned.

During VA back conditions examination in April 2014, the Veteran reported that since his last VA examination, his back pain is more consistent, getting up from sitting is painful, and he experiences flare ups which result in difficulty walking and bending due to increased pain. Range of motion testing showed forward flexion to 90 degrees, extension to 30 degrees, left lateral flexion was limited to 15 degrees, right lateral flexion was limited to 20 degrees, left rotation was limited to 10 degrees, and right rotation to 25 degrees. There was evidence of painful motion during this testing. Repetitive movement of the thoracolumbar spine resulted in no additional range of motion restriction. However, functional loss was indicated, and contributing factors included less movement than normal, pain on movement, deformity and interference with sitting, standing and/or weightbearing. Furthermore, pain, weakness, fatigability and incoordination were noted to produce additional limitation in the form of difficulty getting up from a seated position and taking first few steps thereafter. Tenderness to palpation was indicated. Muscle strength was normal. There was no muscle atrophy. Sensation was intact to sacral segments. Reflexes were hypoactive in the bilateral ankles. Significantly, the examiner opined that the Veteran is functionally impaired due to his low back disability. Specifically, the Veteran experienced severe pain with any strenuous task secondary to limited motion or sitting at a desk for prolonged periods. The examiner specified that the Veteran experiences difficulties and pain with pushing, pulling, lifting, carrying, overhead lifting, crouching, crawling and kneeling  and that he requires alternating sitting and standing. Finally, the examiner explained that this examination is not in conflict with the previous one, noting that the only reason for the different findings was that the Veteran experienced significant pain at the time of the 2013 examination. 

On review, the Board finds that a reduction of the disability rating from 20 percent to 10 percent effective June 1, 2015, for the service-connected low back disability was not proper. The April 2014 VA examination report clearly shows improvement in range of motion testing. The Veteran's functional impairment showed no appreciable improvement, however. He continued to report having back pain and the objective functional impairments noted by both the 2013 and 2014 examiners are the same. Notably, that the Veteran cannot sustain prolonged activity during a flare up and feels increased pain when walking or sitting for prolonged periods or with strenuous activity. In fact, the April 2014 examiner felt it important enough to specify that the examinations are not in conflict, indicating that the nature of the Veteran's disability has remained the same. This examiner explained that, at the time of the previous examination, the Veteran simply was experiencing more pain than during the April 2014 examination. Nonetheless, the nature and severity of such limitations generally was continuous throughout the period where the Veteran was rated 20 percent through the date of the rating reduction. Consequently, the improvement in objective range of motion test results, which served as the basis for the rating reduction, did not actually reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the reduction in the disability rating from 20 percent to 10 percent effective June 1, 2015, for the service-connected degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) was not proper and a 20 percent rating is restored effective June 1, 2015, for this disability.

3. Entitlement to a restoration of 10 percent ratings effective June 1, 2015, for right lower extremity radiculopathy and for left lower extremity radiculopathy

In December 2014, a VA rating decision proposed to reduce the disability ratings assigned to Veteran's bilateral lower extremity radiculopathy from 10 percent to noncompensable. A March 2015 rating decision implemented the proposed rating reduction, reducing the disability rating for his service-connected bilateral lower extremity radiculopathies from 10 percent to noncompensable, effective June 1, 2015, for each of his lower extremities. As such, the procedural requirements of 38 C.F.R. § 3.105 (e) were fulfilled. The Board notes the Veteran's 10 percent disability ratings for right lower extremity radiculopathy and for left lower extremity radiculopathy were effective January 31, 2012, or less than 5 years prior to reduction. As such, the heightened standard for reductions delineated in 38 C.F.R. § 3.344 are not applicable.

The Veteran's sciatic nerve disability is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. 

The Veteran underwent a VA spine examination in May 2013. The examiner assessed that the Veteran has radiculopathy. Specifically, the Veteran's radicular symptoms included moderate, constant pain. The severity of the bilateral lower extremity radiculopathy was noted to be mild. Functional impact included inability to do garden work on flare up, and pain with prolonged sitting and driving. 

During a VA back conditions examination in April 2014, no radiculopathy was noted though a reflex examination showed hypoactive bilateral ankles. The Veteran's functional restrictions remained the same as those outlined in the 2013 examination.

The Veteran also had a VA peripheral nerves examination in April 2014. The Veteran's peripheral nerve diagnosis was acknowledged. A reflex examination confirmed the hypoactive bilateral ankles. Trophic changes due to lower extremity neuropathy were noted to include absence of hair bilaterally. Abnormal gait was attributed to degenerative joint disease. The Veteran was assessed to have mild incomplete paralysis of the sciatic nerve bilaterally. In terms of functional impact, the examiner indicated that the Veteran could be at risk due to his neurological disability if he was in a situation where lower extremity vibratory sensation was essential. 

On review, the Board finds that reduction of the disability ratings from 10 percent to zero percent for right lower extremity radiculopathy and for left lower extremity radiculopathy was not proper. The April 2014 VA examination report clearly shows improvement of symptoms on the basis of the Veteran's lay statements at the time of examination  that he does not experience shooting pain, numbness or tingling. There is no indication that the Veteran's bilateral lower extremity radiculopathy had resolved completely. In fact, while symptomatology may have been improved at the time of the examination, the objective evidence of record shows that the bilateral lower extremity radiculopathy maintained the same severity. Specifically, the May 2013 VA back examination reflects that the Veteran's radiculopathy was mild in severity. Similarly, the VA peripheral nerves examination of April 2014 reflects a finding of mild incomplete paralysis of the sciatic nerve bilaterally. In other words, the severity of the Veteran's bilateral lower extremity radiculopathy has remained the same throughout the appeal period. The examinations of record consistently reflect mild incomplete paralysis of the bilateral sciatic nerves, which warrants a 10 percent rating for right lower extremity radiculopathy and for left lower extremity radiculopathy. In summary, the Board finds that, because the rating reduction from 10 percent to zero percent effective June 1, 2015, for right lower extremity radiculopathy and for left lower extremity radiculopathy was not proper, the criteria for restoration of these 10 percent ratings effective June 1, 2015, have been met.

Increased Ratings

Entitlement to a compensable disability rating for allergic rhinitis, a disability rating greater than 20 percent for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx), a disability rating greater than 10 percent for right lower extremity radiculopathy, and for a disability rating greater than 10 percent for left lower extremity radiculopathy

This appeal stems from increased rating claims for allergic rhinitis, degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx), and for bilateral lower extremity radiculopathy. The Veteran was notified, including in the February 2020 Board remand, that he would be required to attend VA examinations in order to determine the current nature and severity of each of these service-connected disabilities.

In September 2020, VA sent the Veteran a notice that benefit payments (sent to the same address used for the VA examination scheduling notice) had been returned as undeliverable. After obtaining a current mailing address for the Veteran, he was scheduled for VA examinations on December 1, 2020. He did not report for any of them. In July 2021, he was notified by mail that he had not reported for VA examinations and attempts were made to reach him by phone to update his contact information and to reschedule his examinations. Review of the claims file reflects that the July 2021 correspondence was not returned to VA as undeliverable, it was copied to the Veteran's representative, and there was no response from either the Veteran or his representative. 

The Board finds that the Veteran has not presented good cause for his failure to report for VA examinations scheduled in December 2020. He has not asserted that he did not receive notice of the examinations. And it is presumed that appropriate notice was sent. The Board notes in this regard that there is a presumption of regularity in the law which holds that public officers are presumed to have properly discharged their official duties in the absence of clear evidence to the contrary. See Ashley v. Derwinski, 2 Vet. App. 307 (1992); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (presumption of regularity allows courts to presume that what appears regular is regular, with burden shifting to claimant to show contrary).

In this regard, the Court has held that "[t]he duty to assist is not always a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, examinations were essential to the adjudication of his increased rating claims, he failed to report for them, and he has not provided any good cause for his failure to report. Thus, the claims for a compensable disability rating for allergic rhinitis, disability ratings greater than 10 percent for right lower extremity radiculopathy and for left lower extremity radiculopathy, and a disability rating greater than 20 percent for degenerative change of the sacroiliac and pubic symphyseal joints (claimed as fractured coccyx) must be denied.

 

 

MICHAEL T. OSBORNE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Comninos, Georgio

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.