Citation Nr: 21030453 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 09-25 866 DATE: May 18, 2021 ORDER The reduction from 20 percent to 10 percent for the Veteran's service-connected status post Bankhart procedure, left shoulder (left shoulder disability), effective October 26, 2015, was improper; the 20 percent disability rating is restored, effective October 26, 2015. REMANDED Entitlement to a rating in excess of 20 percent for service-connected left shoulder disability is remanded. Entitlement to rating in excess of 10 percent for service-connected metatarsalgia, fourth metatarsal head, left foot (left foot disability) is remanded. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc disease thoracolumbar and lumbosacral spine (thoracolumbar and lumbosacral spine disability) is remanded. Entitlement to an extraschedular rating for service-connected bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran was in receipt of a 20 percent disability rating for his service-connected left shoulder disability from June 23, 2009, to October 26, 2015, a period of more than five years. 2. The evidence of record at the time of the December 2015 rating decision did not demonstrate a sustained improvement in the Veteran's service-connected left shoulder disability under ordinary conditions of life and work. CONCLUSION OF LAW Since the reduction of the rating for the Veteran's service-connected left shoulder disability from 20 percent to 10 percent was improper, the criteria for restoration of the 20 percent rating are met effective October 26, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344 4.1, 4.2, 4.10, 4.13, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1983 to May 1996. In December 2011, the Veteran testified before a Veterans Law Judge (VLJ) who has since retired. In February 2015, the Veteran testified during a videoconference hearing before another VLJ as to each of the issues on appeal; a transcript of the hearing is of record. That VLJ is also no longer available to participate in the adjudication of the Veteran's appeals. Crucially, in December 2020, the Veteran testified during a videoconference hearing before a third VLJ as to each of the issues on appeal; a transcript of that hearing is also of record. While the VLJs presiding over the Veteran's December 2011 and February 2015 hearings are no longer available, the Veteran was indeed afforded an opportunity in December 2020 to testify again before the undersigned VLJ who is available to adjudicate the appeal. As such, a panel of judges is not required in this case. While, in February 2021, the Board sent the Veteran a letter asking whether he wished to appear before another VLJ, such was sent in error. In any event, in response, the Veteran specifically expressed an intent not to appear before the Board for another hearing, and requested that the Board proceed with the appeal. Rating Reductions Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Initially, 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 will be prepared setting forth all material facts and reasons. The beneficiary will 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. If additional evidence is not received within that period, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). The Board notes that, because the December 2015 rating decision did not reduce the Veteran's combined disability rating, the notice requirements of 38 C.F.R. § 3.105(e) are not applicable. Historically, a July 2009 rating decision awarded a 20 percent disability rating to the Veteran's service-connected left shoulder disability under Diagnostic Code 5201, effective June 23, 2009. In doing so, the agency of original jurisdiction (AOJ) noted that the 20 percent disability rating was being assigned based on evidence of record showing painful motion beginning at 90 degrees flexion. Following an October 2015 VA examination, the AOJ issued a December 2015 rating decision that reduced the Veteran's disability rating from 20 percent to 10 percent, effective October 26, 2015, the date of the VA examination. For reductions in ratings to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In regard to disability ratings in effect for a period of 5 years or more, like here, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. See 38 C.F.R. § 3.344(c). Where a veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in the mental or physical 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. Id. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. 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). In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition has demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). As will be explained, the Board finds that restoration of the 20 percent disability rating is warranted, effective October 26, 2015. The July 2009 VA examination report upon which the July 2009 rating decision was based noted the Veteran's report of worsening symptomatology, including an inability to work overhead and difficulty with pain lifting a gallon on milk. He also reported giving way, instability, pain, stiffness, weakness, incoordination, and decrease speed. Range of motion testing revealed flexion from zero to 180 degrees; abduction to 180 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees. The examiner then noted that evidence of painful motion was demonstrated at 90 degrees flexion, 90 degrees abduction, 60 degrees internal rotation, and 55 degrees external rotation. The October 2015 VA examination report upon which the December 2015 rating decision was based noted the Veteran's report of intermittent left shoulder pain, as well as symptoms of locking up and occasionally giving way. He reported feeling weak, having a loss of strength, and being easily fatigued. Range of motion testing revealed flexion from zero to 140 degrees; abduction to 140 degrees, internal rotation to 80 degrees, and external rotation to 55 degrees. The examiner then noted that evidence of painful motion was demonstrated on flexion abduction, and internal rotation, as well as during weight bearing. As noted above, the 20 percent disability rating was assigned under Diagnostic Code 5201 based on the July 2009 VA examiner noting the presence of painful motion beginning at 90 degrees flexion. Significantly, although the October 2015 VA examiner also noted the presence of painful motion during the examination, the exact point at which pain was demonstrated was not recorded. Thus, the October 2015 does not appear to be as complete as the July 2009 VA examination upon which the 20 percent rating was based. Furthermore, the Board notes that the October 2015 VA examination range of motion results do not demonstrate an improvement maintained under the ordinary conditions of life. To the contrary, the range of motion results actually demonstrate a worsening range of motion. While the July 2009 VA examination noted flexion from zero to 180 degrees; abduction to 180 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees, the October 2015 VA examination revealed flexion from zero to 140 degrees; abduction to 140 degrees, internal rotation to 80 degrees, and external rotation to 55 degrees. Thus, an improvement maintained under the ordinary conditions of life was not demonstrated by the October 2015 VA examination. Finally, while the December 2015 rating decision on appeal indicated that it was assigning the 10 percent disability rating pursuant to 38 C.F.R. § 4.59 as the minimum compensable rating, the Board notes that the minimum compensable rating under Diagnostic Code 5201 is, in fact, 20 percent. See 38 C.F.R. § 4.71a. Accordingly, the Veteran's 20 percent disability rating for his service-connected left shoulder disability is restored, effective October 26, 2015. In doing so, the Board is leaving open the question as to whether a rating higher than 20 percent may be assigned. Indeed, such is the question at issue in the Veteran's increased rating claim which is discussed in the REMAND section below. REASONS FOR REMAND I. Increased Rating Claims During the December 2020 hearing before VLJ Chiappetta, the Veteran indicated that his service-connected left shoulder disability, left foot disability, bilateral hearing loss, and thoracolumbar and lumbosacral spine disability may have worsened since his most recent VA examinations. See December 2020 Hearing Transcript, pp. 8, 15, 25, 30. In order to ascertain the current nature and severity of the Veteran's service-connected left shoulder disability, left foot disability, bilateral hearing loss, and thoracolumbar and lumbosacral spine disability, the Board finds that more contemporaneous examinations are needed. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. II. TDIU As noted in the Board's March 2017 remand, the Veteran's claim for a TDIU is inextricably intertwined with his claim for higher ratings. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the claim for the second issue). As such, the Board will defer consideration of that issue at this time. The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records dated from July 9, 2020, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. The Veteran should then be scheduled for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected left shoulder disability, left foot disability, and thoracolumbar and lumbosacral spine disability. The entire record must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all symptoms associated with the Veteran's service-connected left shoulder disability, left foot disability, and thoracolumbar and lumbosacral spine disability. b) For each disability, the examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. For each disability where the examination does not occur during a flare-up, the examiner should estimate the functional loss, including loss of range of motion, due to flare-ups or following repeated use based on all the evidence of record including the Veteran's lay statements. c) The examiner should also comment on the impact that the Veteran's service-connected left shoulder disability, left foot disability, and thoracolumbar and lumbosacral spine disability have on activities of daily living, including his ability to work. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. The Veteran should be scheduled for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected bilateral hearing loss. The entire record must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe all symptoms and functional effects associated with the Veteran's bilateral hearing loss, including any impact that his bilateral hearing loss has on his activities of daily living, including his ability to work. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.