Citation Nr: 21077324 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-34 883 DATE: December 29, 2021 ORDER Restoration of the 40 percent rating for right shoulder and acromioclavicular degenerative joint disease (hereinafter "right shoulder disability") effective February 1, 2016, is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for a left ankle injury is remanded. Entitlement to an initial disability rating in excess of 10 percent for right ankle sprain is remanded. Entitlement to an initial disability rating in excess of 30 percent for left shoulder strain is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to service connection for obstructive sleep apnea as secondary to an acquired psychiatric disorder is remanded. Entitlement to service connection for headaches is remanded. Whether the reduction of the evaluation for left shoulder strain from 30 percent to 20 percent, effective July 1, 2018, was proper, is remanded. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine with intervertebral disc syndrome (hereinafter "lumbar spine disability") is remanded. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDING OF FACT Improvement in the Veteran's ability to function under the ordinary conditions of life and work as a result of his right shoulder disability has not been demonstrated. CONCLUSION OF LAW Restoration of a 40 percent disability rating for a right shoulder disability is warranted. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 3.105, 3.159, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to March 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision which, in pertinent part, granted service connection for a left ankle injury and right ankle sprain, evaluated at 10 percent each, effective December 26, 2012, and for left shoulder strain, evaluated at 30 percent, effective December 26, 2012; June 2015 and November 2015 rating decisions which denied service connection for an acquired psychiatric disorder, to include PTSD and depression, obstructive sleep apnea, and headaches; and a March 2016 rating decision which reduced the rating for the Veteran's right shoulder disability from 40 percent to 20 percent, effective February 1, 2016. In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. As discussed further below, the Board has added the issues of entitlement to increased ratings for a lumbar spine disability and bilateral lower extremity radiculopathy and the propriety of the rating reduction for left shoulder strain from 30 percent to 20 percent, effective July 1, 2018, pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 1. Whether the reduction of the disability rating for right shoulder and acromioclavicular degenerative joint disease (hereinafter "right shoulder disability") from 40 percent to 20 percent, effective February 1, 2016, was proper. The Veteran contends that the reduction of his evaluation for his right shoulder disability from 40 percent to 20 percent, effective February 1, 2016, was improper. Upon review of the record, the Board agrees, and finds that restoration of the 40 percent rating for a right shoulder disability, effective February 1, 2016, is warranted. By way of history, in a December 2013 rating decision, the Veteran was granted service connection for right and left shoulder disabilities, evaluated at 40 percent and 30 percent each, respectively, effective December 26, 2012. The Veteran filed a timely notice of disagreement with the rating assigned for his left shoulder disability. During the pendency of the appeal for an increased rating for his left shoulder disability, the Veteran underwent VA examinations in June 2014 and February 2016. In a March 2016 rating decision, VA reduced the Veteran's rating for his right shoulder disability from 40 percent to 20 percent, effective February 1, 2016 on the basis that the most recent February 2016 VA examination did not reflect that the Veteran's right shoulder disability warranted a 40 percent evaluation. The question before the Board is whether the Veteran's rating reduction for his right shoulder disability was proper. When a rating reduction results in a reduction in the overall amount of compensation paid, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e). See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Here, in the same March 2016 rating decision that reduced the evaluation assigned to the Veteran's right shoulder disability, VA granted separate ratings for the Veteran left and right lower extremity radiculopathy such that his overall rating remained at 90 percent. As the Veteran's overall rating was not reduced, the notice procedures of 38 C.F.R. § 3.105(e) are not applicable. The criteria governing rating reductions for service-connected disabilities is found in 38 C.F.R. § 3.344. The requirements for reductions of ratings differ depending on how long the previous rating has been in place. Here, the Veteran's 40 percent evaluation was in effective from December 26, 2012 and VA reduced the rating effective February 1, 2016. As such, the Veteran's rating was in effect for less than five years. For ratings in effect for less than five years, 38 C.F.R. § 3.344(c) states that a rating may be reduced if there is a reexamination showing improvement in the disability. In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) stated, however, that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21. Furthermore, VA must ascertain whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (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 evaluating whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). Turning to the evidence of record, a December 2013 VA examination report reflects the Veteran reported right shoulder pain which had worsened since onset. He reported right shoulder pain at night which interfered with his sleep, right shoulder stiffness in the morning and during the day, inability to perform overhead work, grinding and clicking with movement, and limitation of activities. The Veteran reported flare-ups such that he could not lift his arm over his head, which interfered with hygiene and other activities. The examiner indicated that the Veteran was left-handed. On examination of the right shoulder, flexion was to 10 degrees with pain beginning at 10 degrees, and abduction was to 5 degrees with pain beginning at 5 degrees. The Veteran was unable to perform repetitive use testing due to pain. The examiner noted additional limitation of range of motion and functional loss following repetitive use, including less movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, but the examiner did not express this in degrees. However, the examiner noted that after repeated use over time and during flare-ups, flexion would be limited to 10 degrees and abduction to 5 degrees. Muscle strength was reduced to 3/5 and the Veteran was unable to perform rotator cuff and instability testing. Based on this examination, VA granted a 40 percent evaluation for the right shoulder (major extremity) based on limitation of motion to 25 degrees from the Veteran's side. VA treatment records reflect that in March 2014, the Veteran began physical therapy for his shoulder disability. Upon examination, the Veteran would not elevate his arm above more than about 80 degrees and guarding and discomfort was noted. When asked how he performed his activities of daily living, he reported that his spouse helped him to dress and with hygiene. The Veteran was issued pulleys for exercising his shoulder and in April 2014, he reported improved range of motion but with difficulty still in overhead movements. A June 2014 VA examination report reflects the Veteran reported right shoulder pain which had worsened since onset. The Veteran reported flare-ups such that he had difficulty dressing. The examiner indicated that the Veteran was left-handed. On examination of the right shoulder, flexion was to 80 degrees with pain beginning at 80 degrees, and abduction was to 30 degrees with pain beginning at 30 degrees. On repetitive use testing, flexion was reduced to 65 degrees and abduction remained at 30 degrees. The examiner noted additional limitation of range of motion and functional loss following repetitive use, including less movement than normal, weakened movement, and pain on movement. However, the examiner noted that after repeated use over time and during flare-ups, flexion would be limited to 10 degrees. Muscle strength was normal, but the Veteran was unable to perform rotator cuff and instability testing. The examination report does not indicate whether or not the examiner reviewed the Veteran's medical record. July 2014 and March 2015 VA treatment records note that upon examination, the Veteran's range of motion of his shoulder was markedly limited and he was unable to participate in everyday activities because of pain and stiffness. In March 2015, a consult was placed for possible intra-articular injection. In April 2015, the Veteran was advised that he would need to go to the joint injection clinic. It is unclear from the record whether the Veteran followed up with the clinic. A February 2016 VA examination report reflects that the examiner indicated that no records, including the electronic claims file, hard copy claims file, or collateral sources, were reviewed. The Veteran reported right shoulder pain which had worsened since onset. The Veteran reported flare-ups, described as pain and stiffness. The examiner indicated that the Veteran was ambidextrous. The examiner indicated that the examination was being conducted after repeated use over time and during a flare-up. On examination of the right shoulder, flexion and abduction were both to 60 degrees, with pain noted and causing functional loss, described as less movement than normal. There was evidence of pain on weight-bearing. Repetitive use testing did not further limit range of motion. Muscle strength was normal. The examiner noted functional impact of shoulder pain, stiffness, limited range of motion, and difficulty with heavy lifting. Based on this examination, VA reduced the Veteran's 40 percent evaluation to 20 percent, effective February 1, 2016, based on limited motion of the arm at shoulder level. In November 2016, VA treatment records reflect that the Veteran reported the pulley system was no longer working, his pain medications were no longer effective, and he was having difficulty sleeping at night due to pain in his shoulder. Upon review of the evidence of record, the Board finds that the March 2016 rating reduction was not proper because the evidence fails to satisfy the substantive requirements of 38 C.F.R. § 3.344(c). Examination reports on which the reduction is based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). In this case, the rating reduction was based upon June 2014 and February 2016 examination reports. While the June 2014 examination report does not indicate either way whether records were reviewed, the February 2016 examiner indicated that no records were reviewed during the examination. Furthermore, the June 2014 and February 2016 examiners did not provide measurements of the right shoulder with passive motion in compliance with the regulation and the Court's holding in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Thus, the examinations were inadequate to rate the Veteran's right shoulder disability. Furthermore, the June 2014 VA examiner indicated that after repeated use over time and during flare-ups, flexion would be limited to 10 degrees. While the February 2016 VA examination showed some improvement in range of motion, VA treatment records dated in November 2016 reflect a worsening in his right shoulder disability. In light of the whole recorded history, the Board finds that the evidence of record does not demonstrate improvement in the Veteran's ability to function under the ordinary conditions of life and work as a result of his right shoulder disability. The rating reduction was enacted because of improved symptoms shown by the June 2014 and February 2016 VA examinations. Because these examinations were inadequate, the rating reduction based upon those examinations is void ab initio, and restoration of the 40 percent rating effective February 1, 2016, is granted. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for a left ankle injury is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for right ankle sprain is remanded. While the record contains December 2013 and June 2014 VA examinations regarding the Veteran's bilateral ankles, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements and pain on weight-bearing testing. Additionally, during the August 2019 Board hearing, the Veteran asserted that his left and right ankle 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 his left and right ankle disabilities. 3. Entitlement to an initial disability rating in excess of 30 percent for left shoulder strain is remanded. As discussed below, the Board is remanding the issue of whether a rating reduction for left shoulder strain from 30 percent to 20 percent, effective July 1, 2018, was proper. Because a decision on reduction issue could significantly impact a decision on the issue of entitlement to an initial disability rating in excess of 30 percent for left shoulder strain, the issues are inextricably intertwined. A remand of the increased rating claim for is required. Additionally, during the August 2019 Board hearing, the Veteran asserted that his left shoulder disability has 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 his left shoulder disability. Finally, it appears that VA has consistently rated the Veteran's service-connected right shoulder as the major extremity and his service-connected left shoulder as the minor extremity. VA examinations reflect that the Veteran is left-handed or ambidextrous and the Veteran testified during the August 2019 Board hearing that he favors his left hand. After undertaking the development as discussed above, VA should rate the left shoulder accordingly. The Board notes that doing so also has implications for how the right shoulder is rated, even though the right shoulder rating is not before the Board. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. In a July 2015 VA Form 21-0781 (Statement in Support of Claim for Service Connection for Post-traumatic Stress Disorder (PTSD)), the Veteran reported two stressor incidents. The first occurred in April 1986 while assigned to the 8th Ordinance in Korea, and the second occurred in November 1990 while part of the 70th Ordinance in Turkey. The Veteran's military personnel records reflect he was assigned to the 8th Ordinance at Camp Red Cloud in Korea from October 1985 to October 1986 and assigned to the 70th Ordinance in Turkey from December 1989 to January 1991. VA's documentation of the July 2015 request to the Defense Personnel Records Information Retrieval System (DPRIS) does not indicate the specific research request VA made. However, the August 2015 response from DPRIS, which the Board notes is also incomplete, appears to have searched unit records for the 8th Ordinance for the 1990 calendar year. As noted, the Veteran did not serve with the 8th Ordinance in 1990, and it appears that VA used inaccurate or incorrect dates to attempt to verify the Veteran's stressors. As such, a remand is required to allow VA to attempt to corroborate the Veteran's reported stressors. 5. Entitlement to service connection for obstructive sleep apnea as secondary to an acquired psychiatric disorder is remanded. The Veteran contends that his obstructive sleep apnea is secondary to his acquired psychiatric disorder. Because a decision on the remanded issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to service connection for obstructive sleep apnea on a secondary basis, the issues are inextricably intertwined. A remand of the claim of service connection for obstructive sleep apnea is required. 6. Entitlement to service connection for headaches is remanded. The Veteran contends that service connection is warranted for headaches. Specifically, he contends that his headaches began during service, or alternatively, that his headaches are secondary to his acquired psychiatric disorder. His service treatment records reflect complaints of headaches in June 1986 and VA treatment records dated in 2015 and 2016 reflect complaints of headaches which the Veteran believed were associated with his psychiatric medications. The Veteran was afforded a VA examination and medical opinion in June 2015. Although the Veteran reported headaches and that he underwent an MRI in 2014 from his private physician, the examiner indicated that there were no objective clinical findings of a chronic headache disability and rendered a negative opinion as to whether the Veteran's headaches were related to exposures in Southwest Asia. The Board notes that while the Veteran's military personnel records reflect service in Korea and Turkey, they do not reflect that he served in Southwest Asia as defined in 38 C.F.R. § 3.317 or in Afghanistan, Syria, Djibouti, or Uzbekistan under 38 C.F.R. § 3.320. Furthermore, the June 2015 VA examiner did not render an opinion as to whether the Veteran's headaches were directly related to or began during service, to include related to complaints in 1986, or were secondary to his acquired psychiatric disorder. A remand is warranted so that a new VA examination and medical opinion can be obtained. VA treatment records also reflect that when the Veteran established VA care in March 2014, he had previously seen a private physician, Dr. M.W., for his care. VA has not obtained these records. As the Veteran indicated that these records are relevant to treatment for his headaches, a remand is required to allow VA to obtain authorization and request these records. 7. Whether the reduction of the evaluation for left shoulder strain from 30 percent to 20 percent, effective July 1, 2018, was proper, is remanded. The record raises the issue under Manlincon v. West, 12 Vet. App. 238 (1999), and the Board accepts limited jurisdiction over this issue for the sole purpose of remanding it to resolve the Manlincon issue. The Board notes that in an April 2018 rating decision, VA reduced the evaluation for the Veteran's service-connected left shoulder strain from 30 percent to 20 percent, effective July 1, 2018. The Veteran filed a notice of disagreement in June 2018, with additional clarification received in July 2018. To date, VA has not acknowledged the notice of disagreement or issued a statement of the case. VA must issue a statement of the case (SOC) and provide the Veteran with instructions on perfecting his appeal of this claim to the Board, if he so chooses. See 38 C.F.R. §§ 19.26, 19.29; Manlincon, 12 Vet. App. at 240-41. 8. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine with intervertebral disc syndrome (hereinafter "lumbar spine disability") is remanded. 9. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy is remanded. 10. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is remanded. The record raises the issue under Manlincon v. West, 12 Vet. App. 238 (1999), and the Board accepts limited jurisdiction over this issue for the sole purpose of remanding it to resolve the Manlincon issue. The Board notes that in a March 2016 rating decision, VA reduced the rating assigned to the Veteran's right shoulder disability, continued a 40 percent evaluation for a lumbar spine disability, and assigned separate ratings for left and right lower extremity sciatic nerve involvement, evaluated at 20 percent each, effective February 1, 2016. The Veteran filed a notice of disagreement in April 2016, and VA acknowledged the notice of disagreement in an April 2016 letter. While VA issued an SOC for the rating reduction issue, to date, VA has not issued an SOC for the lumbar spine and radiculopathy issues. VA must issue an SOC for the lumbar spine and radiculopathy issues and provide the Veteran with instructions on perfecting his appeal of this claim to the Board, if he so chooses. See 38 C.F.R. §§ 19.26, 19.29; See Manlincon, 12 Vet. App. at 240-41. The matters are REMANDED for the following actions: 1. Furnish the Veteran with a statement of the case regarding the claims of whether the rating reduction for left shoulder strain from 30 percent to 20 percent, effective July 1, 2018, was proper, and the increased rating claims for a lumbar spine disability and bilateral lower extremity radiculopathy. Provide the Veteran with written instruction on perfecting his appeal to the Board. 2. Obtain the Veteran's VA treatment records from October 2017 to the present. 3. Attempt to corroborate the Veteran's in-service stressors, including incidents in April 1986 while assigned to the 8th Ordinance in Korea and in November 1990 while assigned to the 70th Ordinance in Turkey. If more details are needed, contact the Veteran to request the information. All requests made and responses received should be documented in the claims file. 4. Ask the Veteran to complete a VA Form 21-4142 for any private treatment received for his claimed headache disability, to include from Dr. M.W. in 2014. Make two requests for the authorized records from the identified providers unless it is clear after the first request that a second request would be futile. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral ankle and left shoulder disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for a VA examination for his claimed headache disability. 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 opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's headache disability (1) began during active service, to include related to complaints of headaches in June 1986, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? If the examiner finds that the Veteran's headaches were not incurred in or are not otherwise related to service, and if the Veteran is service-connected for an acquired psychiatric disorder, the examiner must opine whether the Veteran's headache disability is at least as likely as not (1) proximately due to the service-connected acquired psychiatric disorder, to include medications used to treat the disability, or (2) aggravated, i.e., worsened beyond its natural progression, by the service-connected acquired psychiatric disorder, to include medications used to treat the disability? Provide a rationale to support the opinion(s). 7. After completing the above, and any other development as may be indicated, the Veteran's claims should be readjudicated based on the entirety of the evidence. As discussed above, the Veteran is left-handed, and his left shoulder strain should be rated accordingly. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.