Citation Nr: 21077415 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 20-02 380 DATE: December 29, 2021 ORDER The reduction of the rating for sciatic radiculopathy of the left lower extremity from 10 percent to noncompensable, effective February 1, 2015, was improper. The 10 percent rating is restored, effective February 1, 2015, and to that extent the claim is granted. REMANDED Entitlement to an evaluation greater than 20 percent for lumbar disc disease with intervertebral disc syndrome is remanded. Entitlement to an evaluation greater than 10 percent for sciatic radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to October 8, 2018 is remanded. FINDING OF FACT The evidence of record at the time of the February 2015 reduction action does not establish material improvement of the service-connected left lower extremity sciatic radiculopathy. CONCLUSION OF LAW The reduction of the rating for left lower extremity sciatic radiculopathy from 10 percent to noncompensable, effective February 1, 2015, was improper and the 10 percent rating is restored, effective February 1, 2015. 38 U.S.C. § 5107; 38 C.F.R. § 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army National Guard from September 1993 to April 1994. During the pendency of the appeal for a higher disability rating for the service-connected lumbar disc disease and radiculopathy of the left lower extremity, the Veteran submitted a claim for TDIU that attached to the claim for a higher initial disability rating for the service-connected lumbar disc disease for the rating period on appeal. See April 2015 TDIU Claim (VA Form 21-8940). See Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). In effectuating the Board's July 2021 grant of entitlement to a TDIU, the AOJ granted entitlement to TDIU, effective October 8, 2018. However, the TDIU rating period on appeal remaining before the Board is for the period on appeal prior to October 8, 2018. Entitlement to an effective date prior to March 16, 2016, for the assignment of a 10 percent evaluation for radiculopathy of the left lower extremity Service connection for left lower extremity radiculopathy was granted effective January 25, 2012, rated as 10 percent disabling. See September 2013 rating decision. The Veteran filed a July 2014 claim for increase for the service-connected low back disability and additional VA treatment records regarding the severity of his left lower extremity radiculopathy and low back disability were received in September 2014. An October 2014 rating decision granted service connection for right lower extremity radiculopathy and proposed to decrease the rating for the lumbar disc disease and left lower extremity. In December 2014 rating decision, the RO decreased the left lower extremity radiculopathy to noncompensable, effective February 1, 2015. In April 2015 the Veteran filed a claim for increase for his lower extremity radiculopathy and lumbar disc disease. In a December 2015 rating decision, the RO increased the Veteran's left lower extremity radiculopathy of the sciatic nerve to 10 percent disabling, effective January 8, 2015. In March 2016, the Veteran filed a claim for an increased rating of the left lower extremity sciatic radiculopathy and was assigned a 10 percent rating effective March 16, 2016 in the March 2017 rating decision. However, a review of the record reflects that new and material evidence was received within the one-year appeal period of the September 2013, December 2014, and December 2015 rating decisions, including VA treatment records and the December 2015 and November 2016 VA examination reports, rendering a claim for a higher initial rating pending since the September 2013 rating decision. 38 C.F.R. § 3.156(b). Therefore, the initial rating period for the service-connected left lower extremity sciatic radiculopathy is from January 25, 2012, the date service connection for left lower extremity radiculopathy was granted, to present. Even though the December 2015 rating decision granted a 10 percent rating for the Veteran's left lower extremity radiculopathy of the sciatic nerve, effective January 8, 2015 and a March 2017 rating decision granted a 10 percent rating for left lower extremity radiculopathy of the sciatic nerve from March 16, 2016 to present, and a corresponding April 2020 SOC characterized the issue on appeal as entitlement to a higher rating and entitlement to an earlier effective date; because a higher initial rating for left sciatic nerve radiculopathy has remained on appeal from the September 2013 rating decision, subsequent requests for an earlier effective date of the 10 percent disability rating do not convert it into an actual effective date appeal. Likewise, although the April 2020 SOC used the term "effective date," the characterization of the appeal as one of effective date does not convert it into an actual effective date appeal where the substance of the adjudication addressed the appropriateness of rating for the appeal period. Of note, the Veteran's left lower extremity radiculopathy of the sciatic nerve was rated noncompensable from February 1, 2015 to March 15, 2016, presumably pursuant to the December 2014 rating decision despite the subsequent December 2015 rating decision granting a 10 percent rating effective January 8, 2015. In light of the evidence of record, the Board finds that the rating reduction was not warranted. Following the September 2013 rating decision, the Veteran filed a claim for an increased rating for lumbar spine disability in July 2014 and additional VA treatment records were received. After a VA examination in October 2014, the Regional Office (RO) decreased his assigned rating for left lower extremity radiculopathy of the sciatic nerve from 10 percent to noncompensable, finding that the medical evidence showed improvement in the disability. Generally, rating reductions are separate and distinct issues from increased rating claims. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). However, the Board emphasizes that the Veteran filed an increased rating claim, and further that the September 2013 rating decision was not final in that additional VA treatment records were received within one year. Therefore, the Board will consider the propriety of the rating reduction, and the issue of entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve, with the latter being remanded for further development. An increased rating is generally a separate issue from the propriety of a rating reduction. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Where VA has reduced a Veteran's rating without observing applicable laws and regulations, such a rating is void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. When a disability has not become stable and is likely to improve, and the disability rating has not continued at the same level for at least five years, a reexamination disclosing improvement in that disability will warrant a reduction in its rating. 38 C.F.R. § 3.344 (c). The duration of the disability rating at issue is measured by the effective date assigned for that rating until the effective date of the actual reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If a reduction in the rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. A period of 60 days is allowed for response. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e), (i). As a preliminary matter, the Board notes that the Veteran does not contend, and the evidence does not show, noncompliance with the procedural requirements for rating reductions. 38 C.F.R. § 3.105(e). Notice was issued with a statement of facts and reasons for the reduction. An opportunity was provided to submit evidence against a proposed reduction. A subsequent rating decision enacted the proposed reduction at the appropriate effective date. The Board finds the notice provisions have been satisfied. Therefore, the Board will focus only upon the propriety of the reduction. For ratings that have been continued for five years or more, certain regulatory provisions apply. 38 C.F.R. § 3.344(a), (b). However, the 10 percent rating for left lower extremity sciatic radiculopathy was in effect for less than five years at the time of the reduction. Therefore, the provisions of 38 C.F.R. § 3.344(a) and 38 C.F.R. § 3.344(b) do not apply. For ratings in effect for less than five years, reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Nevertheless, 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. Brown v. Brown, 5 Vet. App. 413 (1993); 38 C.F.R. § 4.1, 4.2, 4.10, 4.13. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1. 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 indicate the elements of disability present. 38 C.F.R. § 4.2. 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 the improvement indicates improvement in the ability to function under ordinary conditions of life and work. 38 C.F.R. § 4.13. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a preponderance of evidence weighs against the claim. Brown v. Brown, 5 Vet. App. 413 (1993). Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. 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). Turning to the evidence of record, according to the August 2013 VA examination report, the Veteran was noted to have left sided sciatic radiculopathy noted to be moderate in severity with moderate intermittent pain and paresthesias and/or dysesthesias. Straight leg testing was positive on the left at that time and sensation was decreased in the left lower leg, ankle, foot, and toes. The Veteran was subsequently afforded a VA examination in Ocotber 2014. At that time, he reported constant pain in both legs. Upon examination, there were no signs or symptoms of radiculopathy on the left which the examiner indicated as not affected. Sensory testing was intact, straight-leg testing was normal, and there were no symptoms of invertebral disc syndrome or radiculopathy. After careful review, the Board finds that the preponderance of the most probative evidence does not show that the Veteran's left lower extremity radiculopathy manifested functional improvement to the extent that a rating reduction is appropriate. Thus, the rating reduction was improper, and is restored ab initio. 38 C.F.R. § 3.105. In making this determination, the Board has thoroughly reviewed the medical evidence. Such records indicate that the left lower extremity radiculopathy has not clearly manifested functional improvement. For example, the VA examinations in 2013 and 2014 as well as VA treatment records in 2014 document similar complaints regarding pain in the left leg. The Veteran also reported flare-up involving his back disability wherein he is inactive for about two months in the October 2014 VA examination. Thus, the 2014 examination report and VA treatment records do not clearly reflect a sustained improvement to the extent that a rating reduction is appropriate. In addition, the Veteran indicated that his condition had worsened after the October 2014 VA examination report. See December 2014 Notice of Disagreement. Moreover, even if there was some level of improvement, the Board must also consider whether such improvement reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. After review of the record, the Board does not find evidence of improvement in the Veteran's ability to function and work to such an extent that a rating reduction is warranted. The Board finds the evidence does not show sustained improvement. Accordingly, the Board finds that the preponderance of the evidence does not support the reduction in rating and that the rating will be restored. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an evaluation greater than 20 percent for lumbar disc disease with intervertebral disc syndrome is remanded. 2. Entitlement to an evaluation greater than 10 percent for sciatic radiculopathy of the left lower extremity is remanded. Additional VA treatment records were associated with the record in 2020 and 2021. These additional VA treatment records reflect that the symptoms of both disabilities on appeal may have worsened since the January 2020 VA examinations. The Board, therefore, finds that a remand is necessary to obtain a new VA examination to determine the current severity of the Veteran's lumbar disc disease with intervertebral disc syndrome and radiculopathy. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Clinical records indicate the Veteran began receiving physical therapy at Select Physical Therapy in 2020. On remand, following receipt of any required authorization, records from Select Physical Therapy should be obtained and associated with the record. 38 C.F.R. § 3.159(c). 3. Entitlement to a TDIU for the period prior to October 8, 2018 is remanded. The Board notes that the Veteran originally appeal of the rating assigned with the grant of service connection for lumbar spine disability in addition to raising an intertwined claim for TDIU. While an August 2021 rating decision subsequently granted TDIU, it was only effective October 8, 2018 and the July 2021 Board decision explicitly noted that entitlement to a TDIU would be considered in the separate pending appeal. The matter of whether TDIU is warranted prior to October 8, 2018 remains on appeal as part and parcel of the initial rating appeal, despite the fact that a contemporaneous statement of the case (SOC) only listed the effective date and rating appeals. The adjudication of the issues for higher disability ratings could change the adjudication of TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Consideration of the issue of a TDIU, therefore, will be deferred until the intertwined issues are resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for any private care he has received, to include in Select Physical Therapy. After authorization is received, obtain any outstanding treatment records dated through the present. Document all requests for information as well as all responses in the claims file. 2. Associate the Veteran's most recent outstanding VA medical treatment records with his file, specifically those records beginning from September 2021. 3. After any available records are associated with the claims file, schedule the Veteran for new VA examinations to address the current severity of the Veteran's service-connected lumbar disc disease with intervertebral disc syndrome and left lower extremity radiculopathy involving the sciatic nerve. All pertinent symptomatology and findings must be reported in detail. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.