Citation Nr: A21020044 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200330-75466 DATE: December 15, 2021 ORDER Restoration of a 20 percent disability rating, effective June 1, 2020, for service-connected chronic right elbow strain based on supination and pronation, is granted. REMANDED Entitlement to a compensable disability rating for service-connected right elbow extension is remanded. Entitlement to a disability rating greater than 10 percent for service-connected right elbow flexion is remanded. FINDING OF FACT The Veteran has not experienced improvement in his service-connected right elbow supination and pronation that reflects an improvement in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 20 percent disability rating, effective June 1, 2020, for service-connected chronic right elbow strain based on supination and pronation, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.1, 4.2, 4.10. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from January 1988 to May 1998 and on active duty from January 2008 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). On his March 2020 VA Form 10182 (Notice of Disagreement (NOD)), the Veteran selected the Board's Direct Review Docket. Thus, only the evidence available to the agency of original jurisdiction (AOJ) at the time of adjudication, and no other, will be considered. See 38 C.F.R. §§ 20.202(b)(1), (c)(1), 20.301. At the outset, the Board notes that on his NOD, the Veteran also indicated that he was appealing the issues of "School Child," "Right Knee," and "Left Elbow." Next to the first, he wrote in "3-3-2020," referencing a VA letter that informed him that on June 1, 2020, and October 29, 2032, his benefits would be reduced on account of one child graduating and another turning eighteen. On May 15, 2020, the Board sent the Veteran a letter informing him that there was no decision in the modernized review system under the Appeals Modernization Act (AMA), i.e., a decision dated on or after February 19, 2019, where VA adjudicated the right knee and left elbow issues. Thus, those appeals were not docketed for adjudication. In a December 10, 2021, letter, VA notified the Veteran that the March 3, 2020, letter proposedbut did not implementa final action concerning any adjustment for dependent school children. As such, that letter was not an appealable determination, and the child issue was not docketed. With respect to the right elbow issues, the Veteran wrote in "9-30-2019." Under the "Date of Decision" column, he wrote "N/A." On September 30, 2019, the AOJ proposed, but did not effectuate, the reduction addressed below. As noted above, an indication of future action is not appealable. Nevertheless, after that proposed reduction, the Veteran timely requested a hearing (discussed below), and then timely filed his NOD after the March 2020 Rating Decision now on appeal. The March 2020 Rating Decision also denied entitlement to increased ratings for flexion and extension of the Veteran's right elbow. Because the Board is required to construe liberally the Veteran's appeal, it interprets his March 2020 NOD with respect to the right elbow to encompass the reduction and the current ratings contained in the March 2020 Rating Decision. See 38 C.F.R. § 20.202(a). Thus, those issues properly are before the Board. Rating Reduction Whether a rating reduction from 20 percent to 10 percent for service-connected chronic right elbow supination and pronation was proper. With a rating reduction that 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). Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). When VA makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). VA must issue a rating action proposing the reduction and set forth all material facts and reasons for the reduction. The Veteran must then be given sixty days to submit additional evidence and thirty days to request a predetermination hearing. A rating action then will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i). In October 2018, VA issued to the Veteran a rating action proposing to reduce his right elbow disability from 20 percent to 10 percent, setting forth all material facts and reasons for the reduction. A September 30, 2019, letter informed the Veteran that he had sixty days to submit additional evidence showing that his compensation payments should be continued at their present level, and thirty days from the date of the notice letter to request a predetermination hearing. In October 2019 (on a VA Form 20-0995), the Veteran requested a hearing, which took place in January 2020. In the March 2020 Rating Decision now on appeal, VA effectuated the reduction, effective June 1, 2020, which is the first day beyond the last day of the month in which the sixty-day period from the notice of the rating action ended. See 38 C.F.R. § 3.105(e). For these reasons, the Board finds that VA has complied with the procedural due process requirements concerning reductions. See 38 C.F.R. § 3.105(e). Thus, the Board will move to the merits of the reduction. Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In any rating reduction case, it must be determined that an improvement in a disability actually has occurred, and also that that improvement 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, 349 (2000); Brown, 5 Vet. App. at 42021 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 28182. For ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. 38 C.F.R. § 3.344(c). For ratings in effect for five years or more, 38 C.F.R. § 3.344(a)(b) applies. The relevant period for this purpose is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. Therefore, because the Veteran's 20 percent rating was in effect since April 2016, and because the reduction took effect June 2020, the provisions of 38 C.F.R. § 3.344(a)(b) are inapplicable in this case. At the January 2020 pre-determination hearing, the hearing officer agreed to schedule the Veteran for an examination before any decision on a reduction would be made. The Veteran underwent an examination in February 2020. The Board, however, finds that the February 2020 examination was not an "adequate reexamination" under the regulations. 38 C.F.R. § 3.344(c). For rating purposes, examinations of the musculoskeletal system are required to comport with, among other things, the standard set out in Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Under that precedential decision, when a veteran complains of flare-ups and an examination is conducted in the absence of a flare-up, an examiner must state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, the flare-ups affect functional impairment. The examiner should estimate functional loss based on the veteran's descriptions of his/her additional loss of function during flare-ups, gleaned from his/her medical records, or discerned from other sources available to the examiner. Id. at 3536. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion lost. If the examiner cannot express functional loss in this manner without resorting to speculation, then the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. The Board can treat as adequate an examiner's statement that he or she could not offer an opinion without resorting to speculation only when (1) it is clear that the examiner has considered all procurable and assembled data before stating that an opinion cannot be reached; and (2) the examiner explains the basis for his or her conclusion that a non-speculative opinion cannot be offered. Id. at 33. With respect to the first requirement, when the record is unclear as to whether VA has considered all datafor example, by obtaining all tests and records that might reasonably illuminate the medical analysisthe Board must remand for further development. Id. at 32. The Board also must ensure that such an opinion is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Id. at 36. The February 2020 VA elbow examination report indicates that the Veteran suffers from flare-ups of his right elbow. The examination was not conducted during a flare-up, and the examiner indicated that he could not describe the Veteran's additional functional loss during flare-ups in terms of range of motion because "[Range of motion] UNCHANGED; DECREASE HIS USE." It is unclear to the Board whether this means that there is no change in range of motion because the Veteran does not use his arm during a flare-up, which would appear to be an internally inconsistent finding, or whether it means that the Veteran's range of motion is unchanged, and that the Veteran simply should decrease his use during a flare-up. Either way, the explanation does not comport with the requirements for an opinion when an examiner cannot express additional functional loss in terms of range of motion. Thus, the Board does not find that this examination is adequate. See id. at 32, 33, 36. Because the Board finds the February 2020 examination inadequate, it cannot be said that the AOJ reduced the Veteran's rating on the basis of "adequate reexamination that discloses improvement in the disability" warranting a reduction in rating. 38 C.F.R. § 3.344(c) (emphasis added). Therefore, because VA has not met its burden by showing that the Veteran's disability has undergone an improvement and that said improvement actually reflects an improvement in his ability to function under the ordinary conditions of life and work, his rating must be restored. See 38 U.S.C. § 1155; Faust, 13 Vet. App. at 349. REASONS FOR REMAND Entitlement to a compensable disability rating for service-connected right elbow extension is remanded. Entitlement to a disability rating greater than 10 percent for service-connected right elbow flexion is remanded. Unless the issue or issues on appeal can be granted in full, the Board must remand the appeal to the AOJ for correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A, if the error occurred prior to the date of the AOJ decision on appeal. The Board may remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. The remand must specify the action to be taken by the AOJ. 38 C.F.R. § 20.802(a). As noted above, the medical examination provided to the Veteran in February 2020 is inadequate. Where the record does not adequately reflect the current state of a veteran's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Thus, remand is required to obtain a retrospective opinion or adequate medical examination of the Veteran's right elbow. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) ("We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."); 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: 1. Obtain a retrospective medical opinion as to the severity of the Veteran's right elbow disability during the February 2020 VA examination. An in-person examination is not required unless deemed so by the examiner. The examiner must opine as to the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the examiner's best ability, the additional range of motion lost should be described in degrees based on that information. As the examiner must provide a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up. Nonetheless, to the extent possible, the examiner should still provide an opinion regarding the extent of the Veteran's functional loss during flare-ups as described in his February 2020 VA examination and his pertinent lay statements. 2. Readjudicate the Veteran's appeal. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.