Citation Nr: 21024434 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-43 889 DATE: April 22, 2021 ORDER Restoration of the 40 percent rating for peripheral vascular disease (PVD), right lower extremity, effective April 1, 2016, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 40 percent for PVD, right lower extremity, is remanded. FINDINGS OF FACT 1. The evidence of record at the time of the January 2016 rating decision to reduce the rating for PVD, right lower extremity, from 40 percent to 20 percent, did not reflect improvement in the Veteran’s ability to function in the ordinary conditions of life and work. 2. The Veteran has had a combined rating of at least 70 percent, with at least one disability rated at 40 percent or more, and his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction in rating from 40 percent to 20 percent for PVD, right lower extremity, effective April 1, 2016, was improper. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 3.344 (2020). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1965 to June 1967, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and January 2016 rating decisions issued by the VA Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. 1. Reduction – Right Lower Extremity PVD The Veteran has contended that the disability rating assigned for his right lower extremity PVD should not have been reduced from 40 percent to 20 percent. In a February 2013 rating decision, the RO granted a 40 percent rating for the Veteran’s service-connected right lower extremity PVD, effective November 14, 2012. In June 2015, the RO proposed to reduce the assigned rating from 40 percent to 20 percent. A June 2015 notification letter containing all the information required by 38 C.F.R. § 3.105(e) (2020), including the proposed reduction in compensation payable and 60-day response period, was sent to the Veteran and his representative. In a January 2016 rating decision, the RO reduced the assigned rating from 40 percent to 20 percent, effective April 1, 2016. Having found that the procedural protections of 38 C.F.R. § 3.105(e) do apply, and have been satisfied, the Board turns to the question of whether the rating reduction for the Veteran’s right lower extremity PVD was proper. At the time of the January 2016 rating decision, the 40 percent rating for the Veteran’s service-connected right lower extremity PVD had not been in effect for more than five years. Where a rating has been in effect for less than five years, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). A December 2012 VA examination, upon which the 40 percent rating was based, reflected that the Veteran had claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour. Additionally, the evidence showed diminished peripheral pulses and ankle/brachial index (ABI) of 0.63. The Veteran’s PVD limited his ability to walk or stand for prolonged periods. In reducing the assigned disability rating to 20 percent, the RO relied primarily on a December 2015 VA examination report. Specifically, the Veteran had claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour. His ABI was 1.36. However, the examiner failed to indicate that the Veteran had diminished right lower extremity peripheral pulses despite evidence of weakened popliteal, dorsalis pedis, and posterior tibial pulses upon examination. The Veteran’s PVD continued to impact his ability to walk prolonged distances. Moreover, the examiner concluded that the Veteran’s right lower extremity PVD had progressed. That was the last VA examination on record prior to the reduction. Hohol v. Derwinski, 2 Vet. App. 169 (1992). The Board finds that, although the December 2015 VA examination disclosed some improvement in the Veteran’s ABI, it did not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-421 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Faust v. West, 13 Vet. App. 342 (2000). Notably, the RO overlooked the examiner’s remarks revealing that the Veteran had diminished peripheral pulses. Furthermore, the RO reduced the rating without addressing the functional impact or the progression of his PVD. Thus, as compared to the prior December 2012 VA examination findings, the Veteran’s overall disability picture had not improved appreciably. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board concludes that the reduction in rating from 40 percent to 20 percent for the Veteran’s right lower extremity PVD, effective April 1, 2016, was improper, and the 40 percent rating is therefore restored. 2. TDIU The Veteran has reported that his service-connected disabilities have prevented him from securing or following any substantial gainful occupation. The Veteran’s combined rating has been at least 70 percent, with at least one disability rated at least 40 percent. Therefore, the Board finds that the Veteran has met the schedular criteria for assignment of a TDIU. Additionally, the evidence of record reflects that the Veteran has been unable to secure and follow any substantially gainful employment due to his service-connected disabilities. In this regard, the Veteran stated that he became too disabled to work in August 2011, at which time his service-connected disabilities prevented him from obtaining and maintaining any form of gainful employment consistent with his high school education and occupational experience. The Veteran’s last employer shared that the Veteran worked evening-shifts as a part-time custodian from September 2010 to August 2011. The Veteran reportedly resigned after collapsing at work because there were no available dayshifts and his physician required that he not work alone. Prior to his custodial position, the Veteran worked full-time for 23 years re-milling and treading tires. After he retired in 1993, he held several short- and/or part-time jobs as a warehouse maintenance man, sandblaster, fork-lift operator, video store owner/manager, and information collector. A Social Security Administration disability determination took notice that the foregoing jobs required more than sedentary exertion. In December 2012, a VA examiner noted that the Veteran’s service-connected right lower extremity PVD impacted his ability to work. Specifically, the Veteran could not walk or stand for prolonged periods. Further, the examiner stated that the Veteran’s service-connected diabetes mellitus (DM) caused fatigue. Thus, the Veteran had to avoid heavy exertion. An August 2015 VA examiner found that the Veteran’s service-connected coronary artery disease impacted his ability to perform physical work due to his dyspnea and fatigue. In December 2015, a VA examiner indicated that the Veteran’s service-connected peripheral neuropathy limited his dexterity and ability to sit and stand for prolonged periods. Based on the subjective report of the Veteran and the objective findings in the VA examination reports, the Board finds that the Veteran’s service-connected disabilities significantly impact his ability to function in an occupational setting. Additionally, the Veteran had a lengthy post-service work history in physically demanding jobs. In light of the Veteran’s employment history and the functional limitations described above, the Board finds that he is unable to secure or follow a substantially gainful occupation. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. The Veteran was last afforded a VA examination for his PVD, right lower extremity, in December 2015. He has reported that the severity of his right lower extremity PVD has increased since that time. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his service-connected PVD, right lower extremity. Finally, current treatment records should be identified and obtained before a decision is made with regard to the remaining claim on appeal. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected peripheral vascular disease, right lower extremity. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 3. Confirm that the VA examination report comports with this remand, and undertake any other development determined to be warranted. (Continued on the next page)   4. Then, readjudicate the remaining claim. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.