Citation Nr: 22014706 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-31 033 DATE: March 14, 2022 ORDER The reduction of a 20 percent disability rating for right lower extremity radiculopathy to 10 percent, effective May 9, 2018, was not proper and restoration of the 20 percent rating from May 9, 2018, is granted. REMANDED Entitlement to an increased rating greater than 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an increased rating greater than 20 percent for right lower extremity radiculopathy is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. Notice of a proposed reduction and of procedural rights under 38 C.F.R. § 3.105(e) was not provided to the Veteran with regard to the reduction in rating for right lower extremity radiculopathy from 20 percent to 10 percent, effective May 9, 2018. 2. In a May 2018 rating decision, the regional office (RO) reduced the disability rating for the Veteran's right lower extremity radiculopathy from 20 percent to 10 percent, effective May 9, 2018. 3. The reduction in rating for right lower extremity radiculopathy resulted in a reduction of the combined disability rating, effective May 9, 2018. 4. The rating reduction for right lower extremity radiculopathy is void ab initio because the May 2018 rating decision did not follow the due process provisions of 38 C.F.R. § 3.105 (e). CONCLUSION OF LAW The criteria for restoration of a 20 percent rating for right lower extremity radiculopathy, effective May 8, 2019, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1971 to December 1972. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Whether the reduction of a 20 percent disability rating for right lower extremity radiculopathy to 10 percent, effective May 9, 2018, was proper In April 2018, the Veteran filed a claim for entitlement to an increased rating greater than 20 percent for his service-connected right lower extremity radiculopathy. In a May 2018 rating decision, the RO reduced the Veteran's disability rating for right lower extremity radiculopathy from 20 percent to 10 percent, effective May 9, 2018. VA regulations provide that, where a reduction in the evaluation of a service-connected disability 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 is to be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary must be notified at his or her latest address of record of the contemplated action. The beneficiary must be given 60 days for the presentation of additional evidence. 38 C.F.R. § 3.105(e). VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91; VAOPGCPREC 29- 97. The record contains no evidence that the Veteran was provided written notice of the proposed reduction of the disability rating for his right lower extremity radiculopathy. The record also contains no evidence that notice detailing the process of how to dispute the proposed reduction was provided to the Veteran. In that regard, the May 2018 rating decision noted that "the reduction does not affect your overall combined evaluation which will remain at 40 percent disabling." However, as evidenced by the May 2018 rating decision code sheet, the Veteran's combined disability rating was reduced from 50 percent to 40 percent effective May 9, 2018 as the result of the rating reduction. The Board acknowledges that the May 2018 rating decision also granted an increased disability rating for a lumbosacral spine disorder, which resulted in an increased combined disability rating of 50 percent from April 5, 2018. However, because the increased rating for the lumbar spine disorder pre-dated the reduction, the RO's decision to reduce the right lower extremity radiculopathy disability rating from May 2018 resulted in reduced compensation payments. Thus, despite the RO's conclusion that the combined evaluation was not being reduced, the Veteran's combined rating was, in fact, reduced due to the reduction of the right lower extremity radiculopathy disability rating, and the notification procedures set forth in 38 C.F.R. § 3.105(e) were required. In sum, the rating reduction at issue resulted in reduced compensation payments to the Veteran beginning on May 9, 2018. Because the RO did not issue to the Veteran notice of the proposed reduction with notice regarding his rights under 38 C.F.R. § 3.105(e) prior to the rating reduction, the due process requirements of 38 C.F.R. § 3.105(e) were not satisfied. The United States Court of Appeals for Veterans Claims has consistently held that when VA reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See, e.g., Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that where a rating reduction was made without observance of law in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Accordingly, the 20 percent disability rating for right lower extremity radiculopathy is restored, effective May 9, 2018. REASONS FOR REMAND 1. Entitlement to an increased rating greater than 10 percent for left lower extremity radiculopathy and entitlement to an increased rating greater than 20 percent for right lower extremity radiculopathy During his August 2021 hearing before the Board, the Veteran identified potentially pertinent private treatment records from varying sources including Sharon Healthcare Medical Center; The Cleveland Clinic; I. Kalfas, M.D.; and S. Belden. Although the Veteran submitted some private treatment records in November 2021, it is unclear whether the records submitted are complete. Accordingly, the RO should contact the Veteran and request that he submit an authorization in favor of the identified providers and request copies of the treatment records pertinent to his claims. The Veteran also indicated that he received treatment at the M. Marzano VA Clinic. Additionally, review of the claims file reflects that the Veteran last underwent a VA examination assessing the severity of his right and left lower extremity radiculopathy in May 2018. During his August 2021 hearing before the Board, the Veteran provided testimony that his right and left lower extremity symptoms have increased in severity over the last couple of years, noting also that his right lower extremity numbness progressed from impacting two toes to his entire foot. Accordingly, a new VA examination should be provided to assess the current severity of the Veteran's right and left lower extremity radiculopathy. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); see also 38 C.F.R. § 3.326(a). 2. Entitlement to service connection for obstructive sleep apnea The Veteran contends that his obstructive sleep apnea is related to his active duty service, or in the alternative, that it is secondary to asthma which was incurred in or caused by service. The Board observes that asthma is not a service-connected disability, as service connection for asthma was denied in an unappealed October 2009 rating decision. During his August 2021 hearing before the Board, the Veteran testified that he began having problems with snoring and sleeping during service. He also reported that he began having breathing problems during service while in the hospital for an upper respiratory infection. The available service treatment records do not contain hospital treatment records for an upper respiratory infection. Accordingly, the agency of original jurisdiction (AOJ) should attempt to obtain any inpatient or clinical hospital records for treatment for an upper respiratory infection during service. Additionally, a new VA examination should be obtained. Although a May 2018 VA examiner opined that the Veteran's sleep apnea was not caused by asthma, the examiner did not provide an opinion on direct service connection or address the Veteran's lay reports of breathing problems and sleeping problems during his active duty service. Thus, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit or provide a completed authorization to allow VA to obtain all treatment records from non-VA providers pertinent to his claims, to specifically include those records from Sharon Healthcare Medical Center; Cleveland Clinic; I. Kalfas, M.D.; and S. Belden. All actions to obtain these records should be documented in the claims file. The AOJ must make two attempts to obtain private treatment records, or make a finding that further requests would be futile. If no records are obtained, the AOJ must provide the Veteran with a proper notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Obtain the Veteran's VA medical records, to include medical reports from the M. Marzano VA Clinic. 3. Contact the Veteran and request that he identify the name and location of the hospital in which he received inpatient treatment for an upper respiratory infection during active duty service. 4. Thereafter, contact the National Personnel Records Center (NPRC) and request all in-patient or clinical records of treatment of the Veteran from the identified hospital. The NPRC should be requested to search for any separately stored records. All attempts to locate and secure the Veteran's records must be documented in the record. If, after all procedurally appropriate actions to locate and secure the records have been made and it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile, the AOJ must make a formal finding to that effect. The AOJ must also provide the Veteran with a proper notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) that the appellant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 5. Schedule the Veteran for a new VA examination to assess the current level of severity of his right and left lower extremity radiculopathy. The electronic claims file must be made available to and reviewed by the examiner. All indicated tests and studies should be conducted. All pertinent symptomatology and findings should be reported in detail, and the examiner should state whether the Veteran's symptoms result in incomplete paralysis which may be classified as mild, moderate, moderately severe, or severe, or whether there is complete paralysis. The examiner should specifically address the Veteran's testimony concerning the worsening of his bilateral lower extremity symptoms resulting in increased pain and numbness. 6. Thereafter, schedule the Veteran for a new VA examination with an appropriate physician to determine the etiology of his obstructive sleep apnea. To the extent possible, the examiner should be different from the May 2018 VA examiner. The Veteran's claims file and a copy of this Remand must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. After review of the service and post-service medical evidence of record, and the lay statements and testimony of record, the examiner must state whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran's obstructive sleep apnea was caused by or incurred during the Veteran's active duty service. The examiner is advised that the Veteran's lay statements are competent evidence of in-service and post-service observable symptomatology, and the Veteran has provided lay statements that he experienced problems with sleeping and snoring during service, and with breathing problems since an in-service hospitalization for an upper respiratory infection. A complete rationale for all opinions must be provided. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.