Citation Nr: 23015264 Decision Date: 03/14/23 Archive Date: 03/14/23 DOCKET NO. 18-54 437 DATE: March 14, 2023 ORDER The reduction of the 20 percent rating for radiculopathy of the right upper radicular group nerves to a noncompensable rating effective October 1, 2018, was not proper; therefore, the 20 percent is restored from October 1, 2018. The reduction of the 20 percent rating for radiculopathy of the left upper radicular group nerves to a noncompensable rating effective October 1, 2018, was not proper; therefore, the 20 percent is restored from October 1, 2018. FINDINGS OF FACT 1. The evidence of record persuasively weighs against demonstrating that the Veteran's radiculopathy of the right upper radicular group nerves has actually undergone an improvement as it remained symptomatic. 2. The evidence of record persuasively weighs against demonstrating that the Veteran's radiculopathy of the left upper radicular group nerves has actually undergone an improvement as it remained symptomatic. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating for radiculopathy of the right upper radicular group nerves have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.10, 4.13, 4.124a, Diagnostic Code (DC) 8510. 2. The criteria for restoration of a 20 percent rating for radiculopathy of the left radicular group nerves have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.10, 4.13, 4.124a, DC 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1998 to August 2002, May 2010 to June 2010, and March 2021 to February 2022. Additionally, he had service with the Army National Guard. This appeal is being processed under the legacy review system. These matters come before the Board of Veterans' Appeals on appeal of an October 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office, an agency of original jurisdiction (AOJ). In December 2022, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing. A transcript of that hearing has been associated with the claims file. The Board notes that the Veteran's representative was not present at Board hearing. As such, the Veteran was provided an opportunity to postpone the hearing; however, he elected to proceed with the hearing without his representative. Accordingly, as the Veteran has been accorded his full right to representation in all stages of this appeal by his representative, there is no prejudice in adjudicating the claims herein. See 38 C.F.R. §§ 20.5, 20.1000(a)(1); Dalton v. Nicholson, 21 Vet. App. 23, 29-30 (2007). The Board acknowledges that new, pertinent VA treatment records have been added to the claims file since the AOJ issued its November 2018 statement of the case and no supplemental statement of the case has been issued. See 38 C.F.R. §§ 19.31, 19.37. Notwithstanding, given the restoration of the ratings herein, the Board finds a remand is not necessary for AOJ consideration of these VA treatment records in the first instance and there is no prejudice to the Veteran. See Dalton, 21 Vet. App. at 29-30. Rating Reduction Prior to reducing the rating assigned, regardless of how long the rating has been in effect, VA is required to ensure compliance with certain regulations applicable to all rating reduction cases. See Brown v. Brown, 5 Vet. App. 413, 420 (1993) (specifically identifying 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13). Pursuant to 38 C.F.R. § 4.1, it is essential that both in the examination and evaluation of the disability, that it be viewed in relation to its history. To that end, 38 C.F.R. § 4.2 makes it the adjudicator's responsibility to interpret examination reports in light of the whole recorded history. In doing so, the adjudicator must reconcile the various reports into a consistent picture so that the current rating accurately reflects the elements of disability that are present. Id. Thus, taken together, these regulations impose a clear requirement that rating reductions be based upon the most complete evaluation of the claimant's condition that can feasibly be constructed. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The purpose of this requirement is to protect veterans against adverse decisions based on a single, incomplete or inaccurate report and to enable a more precise evaluation of the level of the disability and of any changes. Id. Further, under 38 C.F.R. § 4.13, when any change in the rating assigned is to be made, the adjudicator must ensure that there has been an actual change in the disability. Finally, in accordance with 38 C.F.R. § 4.10, disability ratings are based on 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. Consequently, each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10. In other words, in any rating reduction case, not only must the adjudicator determine that an improvement in the disability has actually occurred but also that it reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. In rating reductions cases, the burden is not on the veteran to demonstrate that the retention of the higher rating is warranted. See Brown, 5 Vet. App. 421-22. Rather, the burden is on VA to show that the rating reduction is warranted. Id. Whether the reduction of the 20 percent rating for radiculopathy of the right upper radicular group nerves to a noncompensable rating effective October 1, 2018, was proper. Whether the reduction of the 20 percent rating for radiculopathy of the left upper radicular group nerves to a noncompensable rating effective October 1, 2018, was proper. The Veteran contends that the reduction of his 20 percent ratings for radiculopathy of the right and left upper radicular group nerves to noncompensable ratings effective October 1, 2018, was not proper and is unjust. See December 2018 Letter from the Veteran. Specifically, he asserts that VA did not conduct sufficient testing or examination of his disability prior to reducing the ratings assigned. During the December 2022 Board hearing, he described the symptoms he continues to experience in his right and left upper extremities. December 2022 Board Hr'g Tr. A June 2016 rating decision granted service connection for radiculopathy of the right and left upper radicular group nerves and assigned a 20 percent rating for each disability effective December 29, 2015. Thereafter, in the October 2018 rating decision on appeal, the AOJ reduced the 20 percent ratings assigned to noncompensable ratings for radiculopathy of the right and left upper radicular group nerves finding that an October 2018 VA examination noted an improvement in these disabilities. A review of the claims file shows that in October 2018, the Veteran was only afforded a VA neck conditions examination rather than a peripheral nerves conditions examination. At the time of that examination, the Veteran reported experiencing radiating pain into both arms. Upon examination, the examiner found there was no evidence of any impairment in muscle strength, reflexes, and sensation to light touch. Notably, the examiner determined that the Veteran did not have any signs or symptoms due to radiculopathy. The examiner noted the Veteran's report that a magnetic resonance imaging (MRI) had been done of his cervical spine in the past six months and indicated that obtaining an imaging study to evaluate for possible degenerative disc disease or spinal stenosis would be helpful. Despite the examiner's statement that an imaging study would be helpful, no imaging studies were obtained as a part of this examination. Further, the examiner indicated that no records were reviewed in connection with the examination as a record review had not been requested. Thus, it is clear that the examiner did not review the recent MRI nor reviewed any other imaging study. The examiner proceeded to acknowledge the Veteran's report of radiating pain into his arms; however, the examiner concluded that there were no findings suggesting active intervertebral disc syndrome upon examination. A review of the Veteran's VA treatment records produces a September 2018 VA Primary Care Letter which notified him of the recent MRI findings. According to the letter, the MRI of the neck showed degenerative changes at several levels as well as narrowing of the central canal and the openings to the sides that the spinal nerves exit through, but it was not to the extent that neurosurgery would be recommended. At a minimum, it lends support to the Veteran's assertion that he continued to experience neurological symptoms leading up to the October 2018 VA neck conditions examination. The September 2018 VA Primary Care Letter was a part of the claims file at the time of the October 2018 VA neck conditions examination. However, as the October 2018 examiner did not review any relevant records, they did not reconcile the September 2018 findings with their own. The Veteran's radiculopathy of the right and left upper radicular group nerves is rated under DC 8510 for incomplete paralysis of the upper radicular group. Under DC 8510, a 20 percent rating is the minimum compensable rating and is warranted for mild symptoms. 38 C.F.R. § 4.124a. Thus, if symptomatic, at a minimum, a 20 percent rating is warranted under DC 8510. In determining that the reduction of the ratings was warranted, there is no indication that the AOJ considered the limitation of the examination as noted by the October 2018 examiner. See Schafrath, 1 Vet. App. at 594. While the AOJ listed the VA treatment records from September 2017 through September 2018 in the list of evidence reviewed, in its narrative in the October 2017 rating decision pertaining to the reductions, there is no discussion of the Veteran's relevant medical history leading up to the October 2018 VA neck conditions examination which suggested that he continued to be symptomatic. Thus, the Board cannot find that the AOJ viewed the October 2018 VA Neck Conditions Examination Report in relation to the history of the Veteran's disabilities history or attempted to interpret the examination in light thereof. See 38 C.F.R. §§ 4.1, 4.2. Further, the Board notes that the Veteran underwent a June 2022 VA peripheral nerves conditions examination. During that examination, he continued to report symptoms affecting both upper extremities. Following examination, the June 2022 examiner diagnosed his with radiculopathy of the bilateral upper extremities. However, the examiner determined his radiculopathy affected the lower radicular group rather than the upper radicular group. The examiner did not address the change in the nerve group affected. Thus, it is unclear to the Board whether the examiner's diagnosis of radiculopathy of the bilateral upper extremities is a correction of the earlier diagnosis or a progression thereof. Regardless, it is clear that the Veteran's radiculopathy symptoms have not completely abated, and the Board cannot be assured that there has been an actual improvement in the Veteran's disabilities. See 38 C.F.R. § 4.13. Considering the above, the Board finds that the evidence of record persuasively establishes that the reduction of the 20 percent ratings to noncompensable ratings effective October 1, 2018, for radiculopathy of the right and left upper radicular group nerves was improper because an actual improvement in the disability has not been demonstrated. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc). Accordingly, the Board finds that the reduction of the ratings was not proper, and the 20 percent ratings for radiculopathy of the right and left upper radicular group nerves are restored from October 1, 2018. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suh, G., 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.