Citation Nr: 21028522 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-55 950 DATE: May 11, 2021 REMANDED Entitlement to a rating in excess of 20 percent for status post meningioma removal with plates and screw placement (residuals of meningioma) is remanded. Entitlement to a compensable rating for diplopia is remanded. Entitlement to restoration of a 100 percent rating for status post meningioma removal with plates and screw placement from September 1, 2013, is remanded. Entitlement to restoration of a 20 percent rating for diplopia from September 1, 2013, is remanded. REASONS FOR REMAND The Veteran served in the Army from January 1984 to January 2007. He has had a 70 percent combined VA disability rating from September 1, 2013; from January 29, 2008, to September 1, 2013, he had a 100 percent schedular rating for status post meningioma removal with plates and screw placement along with special monthly compensation under 38 U.S.C. 1114 (s) and 38 CFR 3.350(i) based on this 100 percent rating and additional service-connected disabilities independently ratable at 60 percent. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. 1. Entitlement to a rating in excess of 20 percent for the residuals of meningioma is remanded. 2. Entitlement to a compensable rating for diplopia is remanded. 3. Entitlement to restoration of a 100 percent rating for the residuals of meningioma from September 1, 2013. 4. Entitlement to restoration of a 20 percent rating for diplopia from September 1, 2013. Issues 1 4: To ensure that VA has met its duty to assist, and that the Veteran has been afforded due process of law, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, as to the claim for increase for diplopia, a review of the record discloses that the Veteran has reported worsened symptoms since his last VA examination in May 2017. In this regard, at his February 2021 hearing, the Veteran reported worsening diplopia, including having exophoria and convergence insufficiency related to diplopia, related to how diplopia pushed his eye out and muscles having to counteract for that. See Hearing Transcript (February 2021). He submitted private treatment records from Seaside Ophthalmology, including dated in August 2018, showing the Veteran's complaints of difficulty reading computer screen, which was not present the time of his previous visit, and the physician's assessment that the Veteran's eye condition "severely increased since last visit and is worse with daily activities." See Medical Treatment Record - Non-Government Facility (February 2021). An August 2020 medical note shows complaints of blurry vision since the previous visit and notes that the condition decreased since the last visit. Id. Reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Second, as to the residuals of meningioma and diplopia, a review of the record discloses that this appeal arises from the Veteran's disagreement with the rating reduction effectuated in a June 2013 rating decision. By way of history, the record shows that a June 2008 rating decision granted service connection for residuals of meningioma with 100 percent evaluation effective January 29, 2008. An August 2008 rating decision granted service connection for diplopia with a 20 percent evaluation effective February 1, 2008. A February 2010 rating decision proposed to reduce the rating for the residuals of meningioma from 100 percent to 10 percent. An October 2010 rating decision continued 100 percent rating for residuals of meningioma. A July 2011 rating decision proposed to reduce the rating for the residuals of meningioma from 100 percent to 0 percent, and rating for diplopia from 10 percent to 0 percent. A July 2011 letter notified the Veteran of this proposed action. A June 2013 rating decision effectuated the proposed reduction, assigning a 10 percent rating for the residuals of meningioma and noncompensable rating for diplopia from September 2013. A June 2013 letter notified the Veteran of the reduction in rating for the residuals of meningioma and diplopia. VA received in July 2013 the Veteran's notice of disagreement with the June 2013 decision regarding the reduction of the residuals of meningioma rating and diplopia rating. VA issued to the Veteran an August 2017 rating decision increasing the Veteran's rating for the residuals of meningioma from 10 to 20 percent, effective September 1, 2013. VA also issued an August 2017 Statement of the Case (SOC) continuing the 20 percent rating for the residuals of meningioma and noncompensable rating for diplopia. However, the SOC addressed the appeal as a claim for increase rather than as a claim for restoration of a 100 percent rating for the residuals of meningioma and 20 percent for diplopia from September 1, 2013 and did not include the relevant laws. It is noted that the laws pertaining to rating reductions differs from that pertaining to evaluations. Therefore, to ensure due process of law, given the above facts, the Board finds that remand is necessary for issuance of a SOC on the issue of entitlement to restoration of a 100 percent rating for the residuals of meningioma and 20 percent for diplopia from September 1, 2013. In doing so, the SOC should identify the issue of entitlement to restoration of 100 percent rating for the residuals of meningioma and 20 percent for diplopia from September 1, 2013; provide the Veteran the relevant laws; and consider whether the procedural as well as the substantive requirements for reduction of the rating were met. As to the substantive element, the originating agency should consider whether the March 2011 VA examination was adequate to support the rating reduction. In rating reduction cases, VA has the burden to determine whether a disability improved, not whether the evidence supports the current rating; and when VA relies upon a VA examination to address whether improvement has occurred, the examination must be adequate. See Lord v. Wilkie, No. 18-4934, 2020 U.S. App. Vet. Claims LEXIS 727 (Apr. 24, 2020) (it is improper to qualify a challenge to a reduced rating as a claim for an increased rating even if the veteran paraphrased his/her post-reduction claim in terms of entitlement to a higher rating). Third, as to the matters of entitlement to a rating excess of 20 percent for the residuals of meningioma and compensable rating for diplopia, both are inextricably intertwined with the claims for restoration. Therefore, the Board must defer consideration of those matters at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). On remand, the Veteran should be afforded another opportunity to assist in the development of his claims. At his February 2021 hearing, the Veteran stated that he sees a private optometrist and a private provider for the residuals of meningioma. The record contains numerous private treatment records, including those the Veteran submitted after his February 2021 hearing. However, it is unclear whether such are complete. The Veteran is reminded that that VA's duty to assist in the development of claims is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). He should cooperate and assist as requested in the development of his appeal. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all not VA medical providers seen for symptoms of diplopia and the residuals of meningioma. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diplopia. 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. 3. Send the Veteran and his representative a Statement of the Case that addresses the issue of entitlement to restoration of (1) a 100 percent rating for the residuals of meningioma from September 1, 2013; and (2) a 20 percent rating for diplopia from September 1, 2013. Only if the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 4. Readjudicate the claims of entitlement to (1) a compensable rating for diplopia and (2) a rating in excess of 20 percent for the residuals of meningioma. Return to the Board only if the benefit sought on appeal is not granted in full. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.