Citation Nr: 22047729 Decision Date: 08/23/22 Archive Date: 08/23/22 DOCKET NO. 19-22 114 DATE: August 23, 2022 ORDER The reduction of a 20 percent rating to noncompensable for right lower extremity radiculopathy affecting the femoral nerve associated with service-connected lumbar degenerative disc disease was proper, and restoration of a compensable rating is denied. FINDINGS OF FACT 1. In a December 2018 rating decision, the AOJ reduced the Veteran's rating for right lower extremity radiculopathy affecting the femoral nerve from 20 percent to noncompensable, effective March 1, 2019, based on VA examination findings. 2. At the time of the effective date of reduction, the 20 percent rating for the Veteran's right lower extremity radiculopathy affecting the femoral nerve had been in effect since December 16, 2014, which was less than five years. 3. The AOJ complied with the procedural requirements for reducing the Veteran's ratings for right lower extremity radiculopathy affecting the femoral nerve, to include providing proper notification of the proposal to reduce the disability rating and providing the Veteran the opportunity for a hearing and to submit evidence. 4. The VA examinations used to reduce the disability rating were as full and complete as that which served as the basis for the award of the 20 percent rating in a February 2015 rating decision. CONCLUSION OF LAW Restoration of a disability rating of 20 percent for right lower extremity radiculopathy affecting the femoral nerve is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8526, 8626. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1988 to November 1994, and from January 1997 to October 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), which reduced the disability rating of right lower extremity radiculopathy affecting the femoral nerve from 20 percent to noncompensable, effective March 1, 2019. Although the impact of right lower extremity radiculopathy on employment is noted in the record, a request for restoration is not the same as a claim for increase. Inference of a claim for a total disability based on individual unemployability (TDIU) is therefore not appropriate. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Duty to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. VA back and peripheral nerves examinations were provided in July 2017 and January 2018. To the extent that the Veteran's representative contends that the afforded VA examinations were inadequate as they are outdated, the Board finds that the examinations were adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, and conducted thorough medical examinations of the Veteran. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's reduction claim presently before the Board. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, subsequent to the representative's January 2020 brief, the Veteran was afforded another VA back examination in October 2020, rendering the representative's argument moot. Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Reduction The Veteran's right lower extremity radiculopathy affecting the femoral nerve is rated as 20 percent disabling under Diagnostic Code 8526 from December 16, 2014, and noncompensable under Diagnostic Code 8626 from March 1, 2019. 38 C.F.R. § 4.124a. In rating reductions, when VA contemplates reducing an evaluation for a Veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), "[w]here 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." Id. In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." Id. The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing," 38 C.F.R. § 3.105(i), and thereafter, a "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." See 38 C.F.R. §§ 3.105(e); 3.500(r). A Veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In addition to satisfying the procedures outlined above, the AOJ must gather evidence to establish that a rating reduction is proper. Pertinent to the instant case, according to 38 C.F.R. § 3.344(c), where a rating or ratings have been in effect for less than five years, as here, "[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c); see also Brown v. Brown, 5 Vet. App. 413, 417 (1993) (holding that five-year period in § 3.344(c) is to be measured from effective date of rating not from date of AOJ decision assigning that rating). In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time that it effectuated the reduction, although the Board may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Where the reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a net reduction of compensation payments currently being made, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his proper address of record of the contemplated action, furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 U.S.C. § 5112(b)(6); 38 C.F.R. § 3.105(e). The Veteran has not argued, and the evidence of record does not show, a failure of compliance with the due process requirements of 38 C.F.R. § 3.105(e). The Veteran received appropriate and timely notice or the proposed reduction, was afforded the opportunity to testify in support of his claim at a hearing, and was properly notified of the final reduction, which was made effective the first day of the month sixty days or more from the date of notice. Therefore, the Board will proceed with its decision on the merits. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis, including paralysis of the quadriceps extensor muscles, is rated 40 percent disabling. 38 C.F.R. § 4.124a. Diagnostic Code 8626 provides for neuritis of that nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Board also observes that the words "mild," "moderate," and "severe," as used in Diagnostic Code 8526, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In a February 2015 rating decision, a separate compensable rating of 20 percent, effective December 16, 2014, was awarded by the AOJ for right lower extremity radiculopathy affecting the femoral nerve, associated with service-connected lumbar degenerative disc disease. The AOJ also awarded a separate compensable rating of 20 percent, effective December 16, 2014, for right lower extremity radiculopathy affecting the sciatic and external popliteal nerves. The awards of the separate compensable ratings were premised upon a December 2014 VA back examination. The VA examiner indicated that the Veteran displayed radiculopathy symptoms involving the femoral and sciatic nerves of the right lower extremity. Of note, a December 2014 VA peripheral nerves examination performed by the same VA examiner assessed the Veteran's femoral nerve as normal. The current appeal arises from a claim for increase via a Fully Developed Claim (VA 21-526EZ), received by the AOJ on June 27, 2017. The evidence of record reflects that the Veteran was afforded a VA back examination in June 2017. The VA examiner reported that the Veteran had radicular pain, but that such only involved the sciatic nerve. The Board notes that a VA peripheral nerves examination was obtained in October 2017, but was focused solely on the then-pending claim of a separate compensable rating for right upper extremity radiculopathy associated with service-connected right shoulder degenerative joint disease. The AOJ proposed a reduction to noncompensable for the Veteran's right lower extremity radiculopathy affecting the femoral nerve in a November 2017 rating decision. The record thereafter reflects that the Veteran was afforded a VA peripheral nerves examination in January 2018. The Veteran endorsed pain, numbness, and tingling, made worse with prolonged sitting. Upon physical examination, decreased sensation for light touch was observed in the lower leg, ankle, feet, and toes. The VA examiner indicated that the Veteran had mild incomplete paralysis of the sciatic nerve. The Veteran's femoral nerve was assessed as normal. The AOJ, in a May 2018 rating decision, again proposed to reduce the assigned 20 percent rating for the Veteran's right lower extremity radiculopathy affecting the femoral nerve to noncompensable. The AOJ reissued the rating decision as the Veteran was not correctly notified of all of the decisions in the prior November 2017 rating decision. In a December 2018 rating decision, the AOJ reduced the Veteran's assigned rating for right lower extremity radiculopathy affecting the femoral nerve to noncompensable, effective March 1, 2019. The Board notes that subsequent to the reduction in assigned rating, the Veteran was afforded a VA back examination in October 2020. The VA examiner indicated that the Veteran did not display radiculopathy symptoms involving the femoral nerve. The Board finds that the reduction of the Veteran's right lower extremity radiculopathy affecting the femoral nerve from 20 percent to noncompensable, effective March 1, 2019, was proper. While the Veteran has maintained during the appellate period that he continues to experience radiculopathy symptoms in the right lower extremity, the Board finds that the July 2017, January 2018, and October 2020 VA examinations most accurately reflect the Veteran's level of disability, and the nature of such. Although contemporaneous VA treatment records document complaints of radiating back pain, there is no specific reference to femoral nerve involvement. Indeed, the Veteran is in receipt of a compensable rating for right lower extremity radiculopathy affecting the sciatic and external popliteal nerves during the appellate period. Further, the Veteran is not competent to assess the presence or absence of specific nerve involvement as such requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the reduction in the rating was factually warranted and restoration of the 20 percent rating for right lower extremity radiculopathy affecting the femoral nerve is not warranted in this case. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.