Citation Nr: 21014188 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-33 628 DATE: March 11, 2021 ORDER The reduction in the disability rating for the service-connected left lower extremity radiculopathy and neuropathy from 40 percent to 20 percent, effective January 1, 2019, was improper; the claim for restoration is granted. FINDINGS OF FACT 1. At the time of the October 2018 rating decision, which reduced the evaluation for the left lower extremity radiculopathy and neuropathy from 40 percent to 20 percent, effective January 1, 2019, the 40 percent disability rating had been in effect for more than five years. 2. The Veteran’s left lower extremity radiculopathy and neuropathy did not show material improvement at the time of the reduction. CONCLUSION OF LAW The criteria for the reduction in the disability rating for the service-connected left lower extremity radiculopathy and neuropathy from 40 percent to 20 percent have not been met as of January 1, 2019; the restoration of the 40 percent rating is warranted as of that date. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.44, 3.105(e), (i), 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from May 1963 to April 1967. The Veteran presented testimony during a virtual Board hearing before the undersigned Veterans Law Judge in February 2021. This decision is being made based upon review of the entire claims file and the undersigned’s recollection of the hearing testimony. A transcript of the hearing will be associated with the claims file at a later time. The Veteran contends that the disability rating for his left lower extremity radiculopathy and neuropathy disability should not have been reduced from 40 percent disabling to 20 percent disabling, effective January 1, 2019. Specifically, he asserted throughout the appeal, including in the November 2018 Notice of Disagreement (NOD), the October 2019 Substantive Appeal to the Board (VA Form 9), and the February 2021 Board hearing testimony, that this disability had not shown sustained improvement since it was assigned the 40 percent disability rating in the October 2003 rating decision. Rather, the Veteran contended and has submitted supporting medical evidence, including a December 2019 letter from his private neurologist and an August 2019 electromyography (EMG) report, showing that the severity of this disability was the same or had gotten worse at the time that the reduction took place in January 2019. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In many rating reduction cases, the Agency of Original Jurisdiction (AOJ) must first comply with several specific procedures described in 38 C.F.R. § 3.105(e). The Board notes that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance and setting forth all material facts and reasons must be prepared. A veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and, will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. A veteran must also be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. See 38 C.F.R. § 3.105(e). When a disability rating is reduced by the AOJ without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The record shows that the AOJ complied with the requirements of 38 C.F.R. § 3.105(e). Specifically, in addition to issuing an October 2017 rating decision proposing to reduce the disability rating for the Veteran’s left lower extremity radiculopathy and neuropathy from 40 percent disabling to 20 percent disabling, effective January 1, 2019, the AOJ sent the Veteran a letter that complied with the requirements of 38 C.F.R. § 3.105(e). This letter informed him of the proposed action and that he could submit additional evidence and request a hearing within the applicable time periods. Nonetheless, the Board determines that the reduction was improper as the evidence does not demonstrate that the Veteran’s disability had improved at the time that the disability rating was reduced. Records in the claims file show that the 40 percent rating for this disability became effective from November 19, 2002, and was undisturbed until the reduction at issue, which, as noted above, was effective from January 1, 2019. Given these facts, the pre-reduction 40 percent disability rating was in effect for more than five years before it was effectively reduced. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran’s disability.” Id. at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Id. at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in contrast to a case involving a claim for an increased rating, in which the evidence must show that 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). VA regulations provide special provisions for cases involving reductions of ratings that have been in effect for five years or more, as is the case here. Under 38 C.F.R. § 3.344(a), 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 VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a). The evidence that existed at the time that service connection was granted and an initial disability rating was assigned for the left lower extremity radiculopathy and neuropathy consisted of an August 2003 VA examination report, as well as private treatment records from 2001 to 2003. The VA examination report showed that the Veteran had numbness and burning sensation in the left lower extremity with pain of four to six out of a possible ten, and that the pain was coming and going about every two to three days. He had demonstrated weakness in the left leg with unsteadiness when attempting to put all of his weight on the left leg. There was some atrophy of the musculature of the left leg compared to the right, and sensation was decreased on the left leg even though he was able to walk on his heels and toes. He was diagnosed with lumbar radiculopathy and neuropathy. Based upon this evidence, the AOJ assigned a 40 percent disability rating for incomplete paralysis below the knee, which was moderately severe. See 38 C.F.R. § 4.124a, DC 8520. The evidentiary basis for the effectuated reduction to a 20 percent disability rating includes the findings and conclusions made during an October 2017 VA examination, during which the Veteran was determined to have mild left lower extremity numbness and paresthesias and/or dysesthesias, and no constant or intermittent pain. In contrast, the Veteran has contended throughout the appeal that this disability had not improved in severity over time. For example, in a November 2017 statement, the Veteran contended that the October 2017 VA examination report was inadequate, and that his symptoms included pain of a six or seven out of a possible ten. He also asserted that he had numbness in this foot that caused him to fall. He reported that he had constant pain and flare-ups that caused moderate to severe pain. Additionally, he noted in the October 2019 VA Form 9, Appeal to the Board, that a doctor had recommended a magnetic resonance imaging (MRI) scan of his lumbar spine because the doctor could not find any good nerves in the left leg. He stated that medical professional had told him that his nerve disability in that leg would not get better over time and that this leg and foot give out on him several times per day so that he must use a cane to ambulate. In support of these contentions, the Veteran submitted the August 2019 EMG study, as well as the December 2019 letter from a private neurologist. The neurologist stated that he was the treating physician for the Veteran’s worsening lumbar radiculopathy. The doctor noted that the August 2019 EMG showed loss of peroneal and tibial motor responses. This private doctor noted that when this EMG study was compared with a November 2014 EMG study report, the August 2019 study showed worsening radiculopathy since 2014 when the Veteran still had a tibial response. This medical professional noted that although the Veteran underwent a lumbar radiculopathy surgery, it did not prevent further deterioration of his nerves. Given this evidence, and after affording the Veteran the benefit of the doubt, the Board finds that VA has not met its burden in showing that the Veteran’s left lower extremity radiculopathy and neuropathy had improved by January 1, 2019. See 38 U.S.C. § 1155. The August 2019 EMG study report and the December 2019 letter from the private neurologist, as well as the Veteran’s statements throughout the appeal, showed that the Veteran’s left lower extremity nerves did not show sustained improvement, to include under the ordinary conditions of life. See 38 C.F.R. § 3.344(a). As noted above, the Veteran reported a similar amount of pain level, especially during flare-ups, as was noted during the August 2003 VA examination. Additionally, he reported that he experienced falls and had to use a cane to ambulate due to the symptoms in the left leg and foot. See 38 C.F.R. § 4.71a, DC 8520. As noted above, when the AOJ reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck, 12 Vet. App. at 292. Thus, the reduction in the Veteran’s disability rating for the service-connected left lower extremity radiculopathy and neuropathy from 40 percent to 20 percent, effective January 1, 2019, was improper, and the 40 percent disability rating is restored, effective January 1, 2019. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.