Citation Nr: 21008111 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-18 828 DATE: February 11, 2021 ORDER The reduction of the disability rating for degenerative joint disease of the lumbar spine with herniation of L5-S1 and severe bilateral encroachment (lumbar spine disorder) was not warranted; a restoration of the 40 percent rating, effective from July 1, 2011, is granted. The reduction of the disability rating for pseudofolliculitis barbae (PFB) from 30 percent to 10 percent, effective July 1, 2011, was not warranted; a restoration of the 30 percent rating, effective from July 1, 2011, is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disorder prior to May 30, 2008, and to a disability rating in excess of 40 percent from May 30, 2008, forward, is remanded. Entitlement to a disability rating in excess of 10 percent for epicondylitis, left elbow, with olecranon spur, (left elbow disorder) is remanded. Entitlement to a disability rating in excess of 30 percent for PFB is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The November 2010 VA examination report addressing the Veteran’s lumbar spine disorder and PFB was inadequate. 2. The reduction of the rating for a lumbar spine disorder from 40 percent to 20 percent effective July 1, 2011 was not proper. 3. The reduction of the rating for PFB from 30 percent to 10 percent effective July 1, 2011 was not proper. CONCLUSIONS OF LAW 1. The criteria for restoration of a 40 percent rating for service-connected lumbar spine disorder from July 1, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.105, 3.344, 4.71a, Diagnostic Code 5242. 2. The criteria for restoration of a 30 percent rating for service-connected PFB from July 1, 2011, have been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.118, Diagnostic Code 7813-7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2007 rating decision, the RO awarded service connection for thoracolumbar sprain and assigned an initial 10 percent disability rating, effective August 1, 2007. New and material evidence was received within one year of the October 2007 rating decision. See 38 C.F.R. § 3.156(b). Therefore, the claim was readjudicated in March 2008 and October 2008 rating decisions. The October 2008 rating decision assigned an increased rating of 40 percent for degenerative joint disease of the lumbar spine with herniation of L5-S1 and severe bilateral encroachment, effective May 30, 2008. New and material evidence was received within one year of the October 2008 rating decision. See 38 C.F.R. § 3.156(b). The claim for a higher rating for the Veteran’s low back disorder was again readjudicated in June 2010, at which time the RO proposed to reduce the 40 percent rating to 10 percent. An April 2011 rating decision reduced the Veteran’s disability rating for PFB from 30 percent to 10 percent effective July 1, 2011; reduced his disability rating for a lumbar spine disorder from 40 percent to 20 percent effective July 1, 2011 (although his is erroneously reflected as July 1, 2010 on the rating codesheet); and denied a disability rating in excess of 10 percent under Diagnostic Code (DC) 5206 for epicondylitis of the left elbow. A September 2011 rating decision denied entitlement to service connection for hypertension. In March 2017, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In March 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. In April 2020, the RO awarded a separate 10 percent rating under DC 5213 for painful supination and pronation of the left elbow, effective November 7, 2019. In May 2020, the RO also awarded service connection for left lower extremity radiculopathy with an evaluation of 10 percent, effective November 7, 2019 Rating Reductions In June 2010, the RO proposed, in pertinent part, to reduce the Veteran’s 40 percent rating for service-connected lumbar spine disorder to 10 percent, and to reduce his 30 percent rating for service-connected PFB to 0 percent. An April 2011 rating decision reduced the Veteran’s disability rating for PFB from 30 percent to 10 percent effective July 1, 2011, and reduced his disability rating for a lumbar spine disorder from 40 percent to 20 percent effective July 1, 2011 (although his is erroneously reflected as July 1, 2010 on the rating codesheet). The Board finds that the RO complied with the procedural safeguards regarding the notice of the proposed rating reductions and the implementation of those reductions. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reductions. The 40 percent rating assigned for the Veteran’s lumbar spine disorder was in effect from May 30, 2008 to June 30, 2011, so less than five years. Similarly, the Veteran’s 30 percent rating for his PFB was in effect from August 1, 2007 to June 30, 2011, also less than five years. As the ratings were in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a), (b), which provide additional regulatory hurdles to rating reductions, do not apply. The provisions of 38 C.F.R. § § 3.344(c) provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. In Brown v. Brown, 5 Vet. App. 413 (1993), the Court identified general regulatory requirements which are applicable to all rating reductions, including those which have been in effect for less than five years. Brown, 5 Vet. App. at 417. Pursuant to 38 C.F.R. § § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Id. at 420. Similarly, 38 C.F.R. § § 4.2, establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. The Court has held that these provisions “impose a clear requirement” that rating reductions be based on the entire history of the veteran’s disability. Id. Furthermore, 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 420-421; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point may include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). Importantly, the reduction of a rating must have been supported by the evidence on file at the time of the reduction, rather than only by post-reduction evidence. However, pertinent post-reduction evidence favorable to restoring the rating must also be considered and may show that the rating reduction was improper. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The examination report 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). Lumbar Spine The Board finds that the November 2010 VA examination report, on which the lumbar spine rating reduction was based, did not support a finding of material improvement in the Veteran’s lumbar spine disorder, certain to be maintained under the ordinary conditions of daily life. Rather, the Veteran’s VA treatment records reflect that his spinal range of motion was severely restricted, with consistent findings of his thoracolumbar flexion limited to 30 degrees, as recently as two days before the November 2010 examination. See September 2010 Primary Care Note; October 2010 Primary Care Note; November 2010 Primary Care Note (reflecting flexion limited to 30 degrees). Additionally, the November 2010 VA examination report noted there was no history of flare ups of the Veteran’s spine condition. This finding is contradicted by the Veteran’s treatment records, which consistently record the Veteran’s lumbar spine disorder being aggravated by extended periods of sitting and standing. In light of the findings from the Veteran’s treatment records documenting flare-ups, the Board finds that the November 2010 VA examination was not adequate. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (because the examiner failed to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacked sufficient detail necessary for a disability rating). Because the examination was inadequate, the subsequent rating reduction is void ab initio, and restoration of the 40 percent rating is appropriate. PFB As stated above, a rating reduction is not proper unless the veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. The question of whether a disability has improved involves consideration of the applicable rating criteria. At the time of the reduction, the Veteran’s PFB was evaluated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813-7800. Diagnostic Code 7813 pertains to dermatophytosis and specifies that the disability is to be rated depending upon the predominant disability under Diagnostic Code 7800 (disfigurement of the head, face, or neck), Diagnostic Codes 7801-7805 (scars), or Diagnostic Code 7806 (dermatitis). 38 C.F.R. § 4.118. Under Diagnostic Code 7800 (both prior to and since the August 13, 2018 amendments), a 10 percent rating is warranted for disability of the skin of the head, face, or neck with one characteristic of disfigurement. An evaluation of 30 percent requires disability of the skin of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears, (auricles), cheeks, lips) or with two or three characteristics of disfigurement. A 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is provided when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are as follows: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). A March 2007 pre-discharge VA examination report reflected the Veteran’s PFB manifested in oozing, itching, crusting, and shedding. The PFB was characterized as constant in nature and involving the exposed areas of the Veteran’s face and neck. The examiner noted that the skin condition was present in the beard area. The Veteran’s skin was noted as hyperpigmented and with an abnormal texture in an area greater than 6 square inches. The examiner recorded the Veteran’s PFB as covering 15 percent of his exposed area, 1.5 percent of total body area, with no treatment in the past twelve months. See March 2007 VA Examination Report. With respect to functional impairment, the Veteran stated that he had to get permission to shave with clippers. In October 2007, the RO awarded the Veteran service connection for PFB and assigned an initial 30 percent rating, effective August 1, 2007. The Veteran did not appeal. In a January 2010 letter, the RO notified the Veteran that VA is required to periodically re-evaluate certain disabilities and that it had requested a physical examination of his service-connected disability(ies) in order to review the severity of the condition(s) to ensure that he was properly evaluated. As the Veteran failed to report for a VA examination of his skin scheduled in April 2010 and his VA and private treatment records showed no treatment for PFB, in June 2010 the RO proposed to reduce the 30 percent rating assigned for PFB to noncompensable. The Veteran’s VA treatment records dated since September 2009 are of record. His list of active outpatient medications reflect that the Veteran was to apply erythromycin, two percent topical gel, to the affected area of his skin every day for acne, apply after shaving, beginning in September 2010 and ending in approximately June 2011. The Veteran was scheduled for an additional VA examination in November 2010. The VA examination report reflected the Veteran’s PFB manifested in minute scars under his chin, one millimeter in greatest dimension. There was no skin breakdown over the scar and no pain. The Veteran stated that the scars do not cause any symptoms. The scars were noted as superficial and asymptomatic, with no pain, skin breakdown, inflammation, edema, keloid formation, abnormal texture, hypo- or hyper-pigmentation, elevation or depression, or adherent to underlying tissue, with no other disabling effects. There was no gross distortion or asymmetry of any feature or set of paired features of the head, face, or neck. The Veteran reported his PFB has been the same, with a constant rash under his chin requiring daily use of a topical cream, which the examiner classified as neither a corticosteroid nor an immunosuppressive. There were scattered papulovesicles on his chin. The examiner noted the Veteran’s PFB affected less than 5 percent of exposed areas (head, face, neck and hands) and less than 5 percent of total body, and that there was no effect on the Veteran’s functional activities. See November 2010 VA Examination Report. In a March 2011 addendum to the examination report, the examiner stated that there were several, around 10, minute scars under the Veteran’s chin. At a February 2011 VA consultation, the Veteran complained of acne on his face, in the beard area, back and chest. The dermatologist noted open and closed comedones on his face, back and chest. The Veteran reported using an erythromycin solution which was of no help. He was prescribed doxycycline tablets, benzoyl peroxide wash, and clindamycin solution. See February 2011 Dermatology Consult. On follow-up evaluation in March 2011, it was noted that the Veteran’s face and chest had cleared. There were a few scattered open and closed comedones on his back, as well as some hyperpigmented macules on his back. He was advised to continue doxycycline for another month as well as the benzoyl peroxide wash and clindamycin solution. At his hearing before the Board in March 2017, the Veteran testified that when he was working at a high school he had to shave and his skin would “bump up.” As he was not working there any more, he was able to let his beard grow. He stated that he did not have to seek any treatment for his PFB as long as he did not have to shave every day. He stated that when he shaved, the area under his chin bumped up and that the condition affected everywhere his beard was. The Board finds that, at the time of the April 2011 rating reduction, while the evidence reflected that the Veteran’s PFB had improved, there was no indication that such improvement reflected improvement in his ability to function under ordinary conditions of life and work. In this regard, the evidence shows that the Veteran’s PFB is not bothersome when he does not have to shave his face. However, when he does have to shave he experiences bumps everywhere his beard is. There was no evidence at the time of the November 2010 VA examination concerning the Veteran’s frequency of shaving and any associated flare-ups of PFB. As the Veteran’s need to shave is dependent upon the type of job he has, the evidence does not support a finding that the improvement in his PFB on examination in November 2010 reflected improvement in his ability to function under ordinary conditions of life and work. For example, on the pre-discharge VA examination in March 2007, the Veteran was still on active duty and was required to shave. He stated that he had to get permission to shave with clippers. However, on VA examination in November 2010, when his PFB had approved, there was no indication as whether or not he was required to shave for his job. Thus, restoration of the 30 percent rating is appropriate. REASONS FOR REMAND 1. Increased Ratings for Lumbar Spine Disorder, PFB, and Left Elbow Disorder Unfortunately, a remand is necessary in this case. The Veteran was provided with a supplemental statement of the case (SSOC) addressing his claims for increased ratings for PFB, lumbar spine disorder, and left elbow disorder in May 2020. Since that time, additional relevant evidence has been associated with his file including August 2020 disability benefit questionnaires addressing these disorders and VA treatment records. As such, the case must be remanded for the issuance of a SSOC. See 38 C.F.R. § 19.31. Additionally, it appears that the Veteran’s PFB has increased in severity since his most recent November 2019 VA examination. See November 2020 Primary Care Messaging (discussing the potential prescription of a steroid ointment). Thus, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. 2. Service connection for hypertension Pursuant to the Board’s March 2018 remand, the Veteran underwent a VA examination to determine the nature and etiology of his hypertension. A November 2019 VA examiner provided a negative opinion essentially based on the absence of a diagnosis during service or at separation. Although the examiner considered the Veteran’s in-service recordings of elevated blood pressure readings, they did not provide an opinion on whether the Veteran’s service treatment records show a consistent pattern of pre-hypertensive blood pressure readings during active service. On remand, a supplemental opinion should be obtained, as set forth below. 3. TDIU The record is currently unclear as to the Veteran’s employment history, as well as his current employment status. In this regard, the Veteran testified that he was unemployed at the March 2017 Board hearing. At a November 2019 VA examination, the Veteran reported he was employed by the Social Security Administration. Most recently, the Veteran submitted a VA Form 28-1900, Application for Vocational Rehabilitation. In this case, clarification of the Veteran’s current and past employment status must be obtained before the Board can determine whether TDIU is warranted. Thus, on remand the Agency of Original Jurisdiction (AOJ) should obtain the Veteran’s current and past work history, including the exact dates and amounts of income during the appeal period. Finally, as this matter is being remanded the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete VA Vocational Rehabilitation file. 2. Make arrangements to obtain the Veteran’s updated VA treatment records, dated from July 2020 forward. 3. Request that the Veteran complete an updated application for TDIU (VA Form 21-8940) to clarify his employment status since August 2007. 4. Make arrangements to obtain the Veteran’s SSA wage and earning reports from August 2007 to the present to verify income received. 5. Review the claims folder to determine whether VA examinations are necessary in order to assess the severity of the Veteran’s lumbar spine disorder and left elbow disorder. If so, schedule the Veteran for an appropriate VA examinations. 6. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected PFB. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 7. Return the claims file to the November 2019 VA examiner for a supplemental opinion. If that examiner is not readily available, a VA opinion may be obtained by another medical professional with an appropriate background or expertise. The Veteran should not be scheduled for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) unless deemed necessary by the VA medical professional rendering an opinion on this claim. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the supplemental opinion. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the hypertension was incurred in or is otherwise related to the Veteran’s active military service, to include the Veteran’s in-service elevated blood pressure readings and whether those readings constituted pre-hypertension. The examiner should provide a rationale for all opinions expressed. 8. The April 2011 rating decision reduced the Veteran’s disability rating for his lumbar spine disorder from 40 percent to 20 percent effective July 1, 2011; however, this is erroneously reflected as July 1, 2010 on the Rating Codesheet. In implementing the Board’s decision above restoring a 40 percent rating for the Veteran’s lumbar spine disorder as of July 1, 2011, the Rating Codesheet should also be corrected to reflect a 40 percent rating as of July 1, 2010. 9. Finally, after completing any additional development that may be indicated, readjudicate the Veteran’s claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.