Citation Nr: 21032836 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-12 373 DATE: May 28, 2021 ORDER Restoration to a 20 percent disability rating for service-connected radiculopathy of the right lower extremity is granted. Restoration to a 20 percent disability rating for service-connected radiculopathy of the left lower extremity is granted. REMAND Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected radiculopathy of the right lower extremity is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected radiculopathy of the left lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected lumbar spine degenerative joint disease with invertebral disc syndrome (IVDS) bilateral L24 (hereafter referred to as a "low back disability") is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has not experienced improvement in his service-connected radiculopathy of the right lower extremity that reflects an improvement in his ability to function under the ordinary conditions of life and work. 2. The Veteran has not experienced improvement in his service-connected radiculopathy of the left lower extremity that reflects an improvement in his ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for restoration to a 20 percent disability rating for service-connected radiculopathy of the right lower extremity are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.1, 4.2, 4.10. 2. The criteria for restoration to a 20 percent disability rating for service-connected radiculopathy of the left lower extremity are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.1, 4.2, 4.10. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a January 2019 decision, the Board remanded these claims so VA could obtain records from the University of North Carolina Hospital (UNCH) Pain Clinic under the VA Choice Program. Those records were associated with the claims file in October 2020. Thus, VA substantially has complied with the Board's prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). With a rating reduction that results in a reduction in the overall amount of compensation paid, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e). Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). When VA makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). VA must issue a rating action proposing the reduction and set forth all material facts and reasons for the reduction. The Veteran must then be given sixty days to submit additional evidence and thirty days to request a predetermination hearing. A rating action then will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i). When the Veteran's ratings for his bilateral lower extremities were reduced, it did not result in an overall decrease in his total disability rating and, thus, his monthly compensation. Thus, VA was under no obligation to follow the notice provision laid out above. See Kitchens, 7 Vet. App. at 325; id. Therefore, the Board will assess only the merits of the reductions. Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In any rating reduction case, it must be determined that an improvement in a disability actually has occurred, and also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. at 28182. For ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. 38 C.F.R. § 3.344(c). For ratings in effect for five years or more, 38 C.F.R. § 3.344(a)(b) applies. The relevant period for this purpose is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. The Veteran's 20 percent rating was in effect since May 2011, and the reduction took effect April 2014. Thus, the provisions of 38 C.F.R. § 3.344(a)(b) are inapplicable in this case. The Veteran was awarded service connection for his bilateral radiculopathy on the basis of an October 2012 VA back examination. A review of the June 2014 rating decision on appeal discloses that the only evidence used to determine that a reduction was proper was an April 7, 2014, VA back examination (this date coincides with the effective date of the reductions). Thus, the Board will compare these two examinations to assess whether a reduction is warranted. The October 2012 VA examination noted normal muscle strength and reflexes. Sensory examination revealed decreased sensation in the bilateral thighs. The Veteran also had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner noted involvement in the bilateral femoral nerves and overall rated the Veteran's radiculopathy as moderate. The examination lists that only imaging studies for the Veteran's back were performed. The May 2014 VA examination noted normal muscle strength, reflexes, and sensation. Only mild, intermittent pain was noted in the bilateral lower extremities, affecting the sciatic nerve. Overall, the examiner listed the Veteran's radiculopathy as mild. No diagnostic testing was performed. The Board will restore the Veteran's ratings for two reasons: it does not find that (1) VA conducted adequate reexamination before it chose to reduce the Veteran's rating, and (2) the Veteran underwent improvement in his ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 349; 38 C.F.R. § 3.344(c). The United States Court of Appeals for the Federal Circuit has held that the M21 does not "carry the force of law." DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Id. (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)). The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. In Overton v. Wilkie, 30 Vet. App. 257, 264 (2018), however, the United States Court of Appeals for Veterans Claims (CAVC) held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." The M21 notes that "EMG results are required for evaluations of peripheral nerve disabilities unless there is a previous EMG test of record or the record contains sufficient clinical evidence to determine the extent of paralysis in the peripheral nerve." III.iv.4.N.4.h. The provision further states that EMG studies "are usually rarely required to diagnose specific peripheral nerve conditions in the appropriate clinical setting and, if EMG studies are in the medical record and reflect the Veteran's current condition, repeat studies are not indicated." Id. Ultimately, it is the role of the rating activity to determine if the examination was sufficient to confirm the question and extent of peripheral nerve involvement. The M21 notes that other clinical findings may be sufficient to document a peripheral nerve disability. These other findings include sensation to light touch testing, deep tendon reflex testing, certain signs for the median nerve, trophic changes, gait testing, muscle strength, and the presence of muscle atrophy. Id. Evaluating the two examinations shows that the Veteran never has been afforded a full peripheral nerve examination; his radiculopathy has been evaluated only as ancillary to his back. To be sure, the two examinations do not agree on which of the Veteran's nerves are affected, as no EMG test ever has been performed. The October 2012 report indicates that the Veteran's femoral nerve is affected, while the May 2014 report notes that it is the sciatic nerve. The medical evidence available to the RO at the time of the reduction does not otherwise contain EMG results, and the Board does not find that there is sufficient medical evidence to both reconcile the differences between the reports and show that the Veteran underwent an improvement in his ability to function under the ordinary conditions of life and work. See Faust, 13 Vet. App. at 349; M21 at III.iv.4.N.4.h. Furthermore, the June 2014 rating decision notes that VA reduced the rating merely because the May 2014 examiner listed the Veteran's radiculopathy as "mild" as opposed to "moderate." VA has conflated the appropriate standard of review by asking whether the Veteran currently meets the criteria under which he is rated. That, however, as noted, is not the proper inquiry. For the reasons discussed above, the Board finds that VA has not met its burden, and the Veteran's prior 20 percent ratings for his radiculopathy of the right and left lower extremities are restored. REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken. 1. Entitlement to service connection for OSA is remanded. As a preliminary matter, the Veteran never perfected with a VA Form 9 his appeal to the Board for the claims of entitlement to service connection for OSA or an increased rating for his low back disability. See 38 C.F.R. §§ 19.20, 19.22, 19.52(b). Nevertheless, VA certified those claims to the Board for appellate consideration. October 20, 2020, VA Form 8. Thus, the Board finds that VA has waived the non-jurisdictional requirements for perfecting an appeal to the Board, permitting the Board to continue with adjudication. See Percy v. Shinseki, 23 Vet. App. 37 4445 (2009). VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained, there are four factors that must be met: (1) whether there is competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is insufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). VAMC records disclose that, in February 2010, the Veteran underwent a sleep study; the diagnosis was moderate OSA. The Veteran's most recent VAMC records confirm that he still is treated for this condition. Various in-service reports of medical history reveal that the Veteran complained of trouble sleeping. The May 1992 discharge examination notes that the Veteran experienced insomnia from 198889, as well as recently within the past six months. On his September 2014 Notice of Disagreement (NOD), the Veteran stated that, in the 1990s "no one even knew what [OSA] was," and that he began snoring during service. The claims file currently contains no competent and credible medical evidence of record to make a decision on the claim. The Board finds that VA has failed its duty to assist the Veteran by not providing him with an initial examination and medical opinion to determine whether his OSA is related to his period of active duty service, as all McLendon elements have been satisfied. The Veteran currently is diagnosed with OSA; there is in-service documentation that he had trouble sleeping and insomnia; he has indicated that he also began snoring during service; and the record otherwise contains no competent and credible medical opinion answering whether the Veteran's in-service insomnia and snoring are related to his current diagnosis. Thus, remand is required to provide the Veteran an initial examination and opinion. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81; 38 C.F.R. §§ 3.159(c)(4), 20.904(a). 2. Entitlement to disability ratings in excess of 20 percent for service-connected radiculopathy of the bilateral lower extremities are remanded. Where the record does not adequately reflect the current state of a veteran's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was last afforded a VA examination as to his service-connected radiculopathy of the right and left lower extremities in May 2014. VAMC records span the entire period of appeal, but, while they document the Veteran's radiculopathy, they do not adequately discuss his symptoms in detail sufficient for rating purposes. The UNCH records discuss the Veteran's radiculopathy symptoms in greater detail, but said records are only dated through February 2017. Thus, there is no sufficient medical evidence for the last four years that the Board can use to rate the Veteran's radiculopathy of the right and left lower extremities. In such circumstances, proceeding with adjudication would be a violation of VA's duty to assist the Veteran. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) ("We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."). Thus, on remand, VA should afford the Veteran the opportunity to attend a peripheral nerve examination to assess the current severity of his radiculopathy of the bilateral lower extremities. See 38 C.F.R. § 20.904(a). 3. Entitlement to a disability rating in excess of 10 percent for service-connected low back disability is remanded. Because the Veteran's radiculopathy has been assessed only ancillary to a VA back examination, the Veteran likewise has not been examined for his low back disability since May 2014. Thus, the Board finds that an updated examination is necessary so that an adequate disability picture can be established before the Board attempts to rate the Veteran. See Green, 1 Vet. App. at 124; id. 4. Entitlement to TDIU is remanded. As the Board is remanding the low back and radiculopathy issues, the matter of entitlement to TDIU is inextricably intertwined and must therefore also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation); 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an examination for his OSA. The examiner shall answer the following: (a.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's OSA occurred in, or is the result of, his period of active duty service, to include the Veteran's in-service reports of trouble sleeping and insomnia? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Afford the Veteran the opportunity to attend an examination to assess the current severity of his low back and radiculopathy of the bilateral lower extremities. EMG testing must be performed for the latter. 4. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.