Citation Nr: 21008342 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 18-34 277A DATE: February 16, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a right shoulder condition is reopened. Entitlement to service connection for a right shoulder condition, variously diagnosed as right shoulder impingement syndrome, rotator cuff tear, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis, is granted. The reduction to a 10 percent rating being improper, restoration of a 30 percent rating for service-connected status post shrapnel in neck injury, effective May 16, 2017, is granted. FINDINGS OF FACT 1. A January 2015 rating decision denied service connection for a right shoulder condition. The Veteran did not perfect an appeal. 2. At the time of the January 2015 rating decision, the record did not contain evidence showing a current diagnosed condition. Subsequent to that decision, additional medical records and examinations were added to the record. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s right shoulder condition, variously diagnosed as right shoulder impingement syndrome, rotator cuff tear, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis, is etiologically related to his time in active service. 4. The Veteran’s status post shrapnel in neck injury has not improved under the conditions of daily life. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a right shoulder condition. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. 2. The criteria to establish service connection for a right shoulder condition, variously diagnosed as right shoulder impingement syndrome, rotator cuff tear, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The reduction in the Veteran’s disability evaluation from 30 percent for status post shrapnel in neck injury was improper and the 30 percent rating is restored, effective May 16, 2017. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.72a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to January 1969, including combat and overseas service in Vietnam. He is a recipient of the Purple Heart. The Veteran appeals a June 2017 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in January 2021. A transcript is of record. Service Connection A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is diagnosed with right shoulder impingement syndrome, rotator cuff tear, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis. See May 2015 VA examination report; October 2016 PA-C B.M. DBQ. The Veteran’s service treatment records (STRs) noted treatment for a dislocated right shoulder and painful shoulder. See May 1968 and January 1969 STRs. The Veteran stated he hurt his shoulder during service after being abruptly woken from enemy mortars and that he ignored his shoulder condition. See January 2021 Board hearing tr. at 6-8. As to nexus, PA-C B.M.’s August 2018 letter noted the Veteran’s in-service right shoulder dislocation, that his shoulder pain is as likely as not incurred at the time of this in-service injury, and that his chronic shoulder pain is a direct result of his right shoulder dislocation as he has had pain in the shoulder since that time and has developed more degenerative arthritic change. The Board find’s PA-C B.M.’s opinion probative. The Veteran also stated that his right shoulder injury has following him his entire career. See May 2020 Veteran statement. The Board finds that there is persuasive evidence of record establishing a link between the Veteran’s right shoulder condition and service. Accordingly, the Board finds that a grant of service connection is warranted for a right shoulder condition, variously diagnosed as right shoulder impingement syndrome, rotator cuff tear, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Rating Reduction The rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The Court in Brown v. Brown concluded that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” 5 Vet. App. 413, 421 (1993). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Medical and non-medical indicators of improvement may be considered. See Faust v. West, 13 Vet. App. 342, 349 (2000). A rating reduction is proper when the AOJ follows the procedural requirements outlined in 38 C.F.R. § 3.105. Under the provisions of 38 C.F.R. § 3.105, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of compensation payments, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, a veteran must be given notice that he has: (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level; and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). The Veteran’s overall rating was not reduced in the June 2017 rating decision, the procedural requirements for rating reductions are not applicable. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007). The question turns to the substantive requirements for rating reductions. Having reviewed the evidence of record, the Board finds that restoration of the 30 percent rating for the Veteran’s status post shrapnel in neck injury, effective May 16, 2017, is warranted. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height - 10 percent disabling. The reduction to a 10 percent rating was based on the May 2017 VA examination. Although the May 2017 VA examiner noted improved range of motion (ROM) measurements, the examiner did not properly illicit information regarding flare-ups. The May 2017 VA examiner noted that the Veteran still had difficulty twisting his neck and difficulty sleeping. The Veteran competently stated that his ROM issues with his neck remained constant and had not improved. See January 2021 Board hearing tr. at 3. The Board finds the Veteran’s statements credible. The Board notes the September 2019 VA examination report noted significantly worse ROM measurements than the May 2017 VA examination report. It is likely the Veteran had such severe limitation in motion in his neck long before his May 2017 VA examination. The Veteran also suggested that a goniometer was not used to properly measure his neck’s ROM. See July 2018 VA Form 9. Overall, the evidence of record does not demonstrate the Veteran’s symptoms have improved under the ordinary conditions of life. The May 2017 VA examination did not properly account for flare-ups. The Veteran continued to have neck pain, issues with twisting his neck, and issues with sleeping and driving due to his neck condition. This was corroborated by the Veteran’s spouse during the January 2021 Board hearing. Accordingly, the Board finds that the Veteran’s ability to function under the ordinary conditions of life and work has not improved. This is supported by competent and credible medical evidence of record. As noted above, in reduction cases, the burden of proof lies with VA to show that the Veteran’s disability has undergone an observable improvement. To be precise, the burden is on VA to establish by a preponderance of evidence that the rating reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). The Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his status post shrapnel in neck injury was therefore improper. The 30 percent rating is therefore restored, effective May 16, 2017. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.