Citation Nr: 22014942 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 16-19 646A DATE: March 15, 2022 ORDER The reduction in the disability rating for right lower extremity radiculopathy from 30 to 10 percent was proper; the appeal is denied. The reduction in the disability rating for left lower extremity radiculopathy from 30 to 10 percent was proper; the appeal is denied. REMANDED Entitlement to a disability evaluation in excess of 40 percent for lumbar spine degenerative disc disease with lumbar spondylosis is remanded. FINDINGS OF FACT 1. In an August 2015 letter, the RO notified the appellant of a proposed reduction in the rating for his service-connected right lower extremity and left lower extremity radiculopathy from 30 to 10 percent; he was advised of his right to submit additional evidence and request a predetermination hearing. 2. A November 2015 rating decision reduced the rating for the Veteran's service-right lower extremity radiculopathy and left lower extremity radiculopathy from 30 to 10 percent effective February 1, 2016. 3. The 30 percent ratings for the Veteran's service-connected left and right lower extremity radiculopathies had been in effect since June 5, 2014, a period of less than five years. 4. The evidence at the time of the November 2015 rating decision showed that the Veteran's right and left lower extremity radiculopathies had materially improved and that such improvement would be maintained under ordinary conditions of life. CONCLUSIONS OF LAW 1. The reduction in the disability rating for right lower extremity radiculopathy from 30 to 10 percent was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Codes 8520, 8521. 2. The reduction in the disability rating for left lower extremity radiculopathy from 30 to 10 percent was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Codes 8520, 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1997 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating determination of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2021. A transcript of the hearing is of record. Reductions In a June 2014 rating decision, the RO increased the Veteran's disability evaluation for his service-connected right and left lower extremity radiculopathy from 10 percent to 30 percent disabling pursuant to Diagnostic Code 8521. In May 2015, the Veteran requested a TDIU. In June 2015, the RO scheduled the Veteran for a VA nerve examination. In a July 2015 rating decision, the RO proposed to reduce the rating for the Veteran's service-connected right and left lower extremity radiculopathy from 30 to 10 percent based upon the June 2015 VA examination results. In an August 2015 letter, the RO advised the Veteran of the proposed reduction and offered him the opportunity to submit evidence and argument and to request a hearing. Pursuant to the Veteran's representative's request, the Veteran was afforded an additional VA examination in October 2015. Following the examination, the RO, in a November 2015 rating determination, reduced the disability ratings for the Veteran's service-connected right and left lower extremities from 30 to 10 percent, February 1, 2016, more than 60 days following the date of notification to the appellant of the reduction. In its rating decision, the RO noted that it had previously proposed to reduce the rating evaluation in August 2015. It stated that the evaluations of left and right lower extremity radiculopathy were decreased to 10 percent effective February 1, 2016. The RO indicated that it had assigned 10 percent evaluations for left and right lower extremity radiculopathy based on mild incomplete paralysis. A higher evaluation of 20 percent was not warranted for paralysis of the sciatic nerve unless the evidence showed nerve damage was moderate. The Board notes that VA's Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). In VA's Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a veteran's disability may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). 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. Id. In addition, the appellant will be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105(h). These are such important safeguards that the U.S. Court of Appeals for Veterans Claims (Court) has held that, where VA has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction. Prior to reducing a Veteran's disability rating, however, VA is required to "comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect." Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421; see also Schafrath, 1 Vet. App. at 594 ("[t]hese requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition'). See also 38 C.F.R. § 3.344(c) (2020). 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 medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Applying the facts in this case to the legal criteria set forth above, the Board finds that the reduction at issue was proper. As a preliminary matter, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) in reducing the appellant's disability rating. As noted, the RO issued a letter in August 2015 advising the Veteran of the proposed reduction, his right to present additional evidence within 60 days of receipt of the letter, and his right to request a hearing. The November 2015 rating decision effectuating the reduction was not issued until the appropriate time period had elapsed, and the effective date of the reduction was in accordance with applicable criteria. Thus, the Board finds that the requirements of 38 C.F.R. § 3.105(e) were met. Thus, the next question for consideration is whether the reduction was proper based on applicable regulations. At the time of the November 2015 rating decision at issue in this case, the 30 percent ratings for the Veteran's service-connected right and left lower extremity radiculopathies had been in effect since June 5, 2014, which was a period of less than five years. Thus, the provisions of 38 C.F.R. § 3.344(c), which apply to evaluations in effect for less than five years, are for application in this case. See 38 C.F.R. § 4.10. In determining whether the reduction at issue in this case complies with the provisions of 38 C.F.R. §§ 4.10, 3.344(c), the Board has reviewed the entire record. After so doing, the Board finds that, at the time of the November 2015 rating decision, the evidence established that the Veteran's service-connected right and left lower extremity radiculopathies had undergone a material improvement warranting a rating reduction from 30 to 10 percent. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor. 38 C.F.R. § 4.124a. Diagnostic Code 8520, which provides criteria for rating impairment of the sciatic nerve, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. A 10 percent evaluation is assigned for mild incomplete paralysis of the external popliteal nerve (common peroneal). A 20 percent evaluation is warranted for moderate incomplete paralysis. A 30 percent evaluation is assigned for severe incomplete paralysis, and a 40 percent evaluation is warranted for severe complete paralysis of the external popliteal nerve manifested by foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. The Veterans Benefits Administration (VBA) has determined that there are 5 separate nerve branches in the lower extremities that may be separately rated. According to VBA, the sciatic nerve (DCs 8520, 8620 and 8720), the external popliteal nerve (common peroneal) (DCs 8521, 8621 and 8721), the musculotaneous nerve (DCs 8522, 8622 and 8722), the anterior tibial nerve (deep peroneal) (DCs 8523, 8623, 8723), the internal popliteal nerve (tibial) (DCs 8524, 8624, and 8724), and the posterior tibial nerve (DCs 8525, 8625, and 8725) affect the foot and leg sensory and motor function of the buttock, leg, knee, muscles below knee, lower leg, fibula, foot, muscles of the sole of the feet, plantar flexion, and toes. Assigning separate ratings from within these nerve branches is not warranted as it would constitute impermissible pyramiding. In this case, the medical evidence of record shows that at the time of a June 2014 VA examination, the Veteran was noted to have normal deep tendon reflexes for the right and left knee but the deep tendon reflexes were found to be absent in both the left and right ankle. The Veteran was found to have mild left and right incomplete paralysis of the common peroneal nerve. Normal findings were reported for the right and left sciatic nerve. Based on this evidence, the RO assigned a 30 percent disability evaluation noting that the Veteran had severe incomplete paralysis based upon absent reflexes. As noted above, the Veteran requested a TDIU in May 2015, and as part of the request he was afforded a VA examination in June 2015. At the time of the examination, the Veteran was noted to have normal deep tendon reflexes for the knees and ankles. The Veteran was found to have mild incomplete paralysis for the left and right sciatic nerves and mild incomplete paralysis for the common peroneal nerves. In an October 2015 Report of General Information Form, it was noted that the Veteran had shown for his hearing but his representative was not with him. It was noted that the representative requested that he be phone called. It was indicated at that time that the Veteran was concerned that the last VA examination was not indicative of the disability as he had taken a lot of pain medication to tolerate the travel he had to undertake for the examination. A new examination was requested at that time. The requested examination was performed later that month. Deep tendon reflex testing performed at that time revealed normal findings for the left and right lower extremity. The Veteran was noted to have bilateral mild radiculopathy of the left and right lower extremity with sciatic nerve involvement. Given the foregoing, there was no demonstration of more than mild radiculopathy for either the sciatic or popliteal nerves at the time of the June and October 2015 VA examinations. Therefore, no more than a 10 percent rating would be warranted under any DCs 8520-8521. Assigning separate ratings from within these nerve branches is not warranted as it would constitute impermissible pyramiding. Accordingly, the RO properly rated the Veteran's disability on residuals. There were no findings of more than mild incomplete paralysis of the lower extremities at the time of two separate VA examinations along with normal deep tendon reflexes. For the foregoing reasons, the Board concludes that the November 2015 rating reduction in question was proper and that the RO appropriately applied the applicable laws and regulations in reducing the 30 percent schedular ratings for left and right lower extremity radiculopathy to 10 percent. Again, the record did not demonstrate more than mild incomplete paralysis of either lower extremity. Thus, the evidence demonstrated that a material improvement in the severity of the Veteran's service-connected left and right lower extremity radiculopathy actually occurred and that such improvement would be maintained under ordinary conditions of life. Under these circumstances, there was no evidence of record that would justify the maintenance of the assigned 30 percent schedular ratings under Diagnostic Codes 8520-8521. In reaching this determination, the Board has carefully considered the Veteran's contentions and recognizes that he continues to experience symptoms related to left and right lower extremities. The Board notes that this rating reflects VA's recognition of these disabilities. As to the Veteran's contentions that he had taken pain medication that masked the true manifestations of his disability, the Board observes, as noted above, that the Veteran was afforded an additional VA examination in October 2015, following the June 2015 VA examination, due to his concerns voiced at an informal hearing earlier that month, with the results again showing no more than mild impairment with normal deep tendon reflexes for the knee and ankle. Accordingly, the weight of the persuasive evidence is against restoration of a 30 percent schedular rating for either right or left lower extremity radiculopathy. REASONS FOR REMAND As it relates to the claim for an increased evaluation for lumbar spine degenerative disc disease with lumbar spondylosis, the Board notes that the Veteran testified that his condition had worsened since his last examination. The Board observes that the last comprehensive VA examination afforded the Veteran occurred in October 2015. VA is obligated to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). Moreover, the Veteran is competent to provide an opinion that his symptoms have worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). As such, an additional VA examination is warranted. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his low back disability. The entire record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the file has been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's low back disability. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court's precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, if applicable. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (Continued on the next page) The examiner should also state whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.