Citation Nr: 18160453
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 10-24 297
DATE:	December 28, 2018
ORDER
The reduction in the rating for service-connected left arm limitation of motion, residual of injury, was not proper, and the 30 percent rating is restored throughout the appeal period.
REMANDED
Entitlement to a rating in excess of 30 percent for service-connected left arm limitation of motion, residual of injury, is remanded.  
Entitlement to service connection for a right knee disability is remanded.
Entitlement to service connection for a left hand and/or thumb disability, to include as secondary to the service-connected left arm disability, is remanded.
Entitlement to service connection for sciatic nerve impairment of the left lower extremity is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1.  An April 2009 rating decision reduced the evaluation for the Veteran’s service-connected left arm limitation of motion, residual of injury, from 30 percent to 20 percent effective July 1, 2009.
2. A February 2013 rating decision increased the evaluation for the Veteran’s service-connected left arm limitation of motion, residual of injury, from 20 percent to 30 percent, effective February 1, 2013.
3. A May 2017 rating decision reduced the evaluation for the Veteran’s service-connected left arm limitation of motion, residual of injury, from 30 percent to 20 percent effective September 1, 2016.
4. Throughout the appeal period, the Veteran’s left arm disability does not show sustained improvement under the normal circumstances of life and work.
CONCLUSION OF LAW
The reduction in the rating for the Veteran’s rating for service-connected left arm limitation of motion, residual of injury, from 30 percent to 20 percent was not proper and the 30 percent rating is restored throughout the appeal period.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.71a Diagnostic Code (DC) 5201.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty in the Marine Corps from July 1980 to February 1983.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2009, December 2013, and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
In December 2012, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the Seattle RO.  
In March 2014, the Veteran testified at a travel board hearing before a Veterans Law Judge who is no longer employed by the Board.  The Veteran was notified of this and afforded a video conference hearing before the undersigned Veterans Law Judge in February 2018.  At the February 2018 video conference hearing, the Veteran requested that the hearing be rescheduled after he had time to meet with his representative.  The Veteran was rescheduled for a hearing in March 2018, but he did not appear.  Therefore, the additional hearing request is deemed withdrawn.  38 C.F.R. § 20.702(d).   
These claims were previously before the Board in July 2014 and remanded for additional development.
The Veteran contends that the reduction of his service-connected left arm limitation of motion, residual of injury, from 30 percent to 20 percent was improper.  He states that his condition has worsened, not improved.  See December 2008, May 2009, and September 2015 statements.  He further contends that the October 2008 VA examination, upon which the reduction effective July 1, 2009 was based, was inadequate for rating purposes.  See January 2017 Informal Hearing Presentation; see also December 2013 statement in lieu of VA Form 646; March 2013 notice of disagreement; December 2012 DRO hearing testimony, pp. 5-7.  He reports that he cannot lift his arm to shoulder level or upwards of 15 degrees.  See June 2010 statement.
In November 2008 and September 2015 rating decisions, the RO proposed to reduce the Veteran’s evaluation for his service-connected left arm limitation of motion, residual of injury, from 30 percent to 20 percent.  The reductions were accomplished in April 2009 and May 2017 rating decisions, and made effective July 1, 2009 and September 1, 2016, respectively.  The RO complied with the procedural safeguards regarding the manner which the Veteran was given notice of and the implementation of the reductions.  See 38 C.F.R. § 3.105. 
A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 349 (2000).  VA has the burden of establishing that the disability has improved.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).  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 considering whether actual improvement was demonstrated).  Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).
The Veteran’s service-connected left arm limitation of motion, residual of injury, is rated under 38 C.F.R. § 4.71a, DC 5201.  The Veteran is right hand dominant.  See March 2015 VA examination.  Under DC 5201, the assignment of a 20 percent disability evaluation is warranted when arm motion is limited to shoulder level in the major or minor arm.  If arm motion is limited midway between the side and shoulder, a 20 percent rating is warranted for the minor arm.  If arm motion is limited to 25 degrees from the side, a 30 percent rating is warranted for the minor arm.  This is the maximum schedular rating for the minor arm under DC 5201.  
The Veteran was initially assigned a 30 percent evaluation effective January 25, 2005 based upon a March 2005 VA examination, which showed external rotation 35/30, internal rotation 95/90, forward flexion 180/70, abduction 160/50.  The Veteran reported painful motion.  The examiner noted that forward flexion of the left shoulder would be decreased by 25 degrees during a flare-up.
The July 1, 2009 reduction was based upon an October 2008 VA examination.  The examination showed pain on movement and increased pain on repetitive movement without additional motion loss.  Active and passive range of motion was zero to 70 degrees of forward flexion and abduction limited by pain and 25 degrees of internal and external rotation limited by pain.  No flare-ups were noted.  
The Board finds there was not demonstrated sustained improvement necessary to decrease the Veteran’s disability rating from 30 percent to 20 percent effective July 1, 2009.  This is evidenced by the fact that the RO increased the Veteran’s rating to 30 percent again effective February 1, 2013, proving that any improvement in the Veteran’s condition was temporary.
The February 2013 increase to 30 percent was based upon a January 2013 VA examination.  The Veteran reported flare-ups.  Range of motion testing showed left shoulder flexion to 100 degrees and 85 degrees with pain; abduction to 95 degrees and 85 degrees with pain.  
The September 1, 2016 reduction was based upon a March 2015 VA examination. The Veteran did not report flare-ups of his condition.  Range of motion testing showed flexion to 85 degrees, abduction to 60 degrees, external rotation to 90 degrees, and internal rotation to 70 degrees.
In comparing the range of motion testing conducted at the January 2013 VA examination to the range of motion testing conducted at the March 2015 VA examination, improvement is not shown.  Flexion remains the same on both examinations and abduction decreases from 85 degrees with pain to 60 degrees.  Further, the January 2013 VA examination notes no functional impact; while the March 2015 VA examination shows functional impact on ability to work including inability to perform strenuous work with the left shoulder due to pain.  Accordingly, the weight of the evidence does not establish sustained improvement in the Veteran’s left arm condition under the ordinary conditions of life and work, the reduction in disability rating was improper and the 30 percent rating is restored throughout the appeal period.  
REASONS FOR REMAND
The Board notes that the AOJ last issued a supplemental statement of the case (SSOC) regarding an increased rating for the Veteran’s service-connected left arm limitation of motion, residual of injury, and a statement of the case (SOC) regarding service connection for the Veteran’s right knee condition, left hand/thumb condition, and sciatic nerve impairment of the left lower extremity, in September 2015.  Since then, additional evidence has been associated with the claims file, including VA treatment records regarding the Veteran’s left arm condition, knee pain, and sciatica.  A subsequent SSOC was not issued by the AOJ, as required by 38 C.F.R. § 19.31(b)(1).  By law, any pertinent evidence submitted to the Board must be referred to the AOJ unless that right is waived by the Veteran or his representative.  38 C.F.R. § 20.1304(c).  Here, the Veteran did not waive initial AOJ consideration of this evidence, and did not respond to the Board’s August 2018 letter inquiring whether he wanted the case returned to the AOJ for review of the additional evidence submitted.  Therefore, the Board has no choice but to remand the claims for a rating in excess of 30 percent for service-connected left arm limitation of motion, residual of injury, entitlement to service connection sciatic nerve impairment of the left lower extremity, and entitlement to service connection for a right knee disability to have the evidence considered by the AOJ.
Further, the Veteran contends that his left knee, thumb injury, and sciatica nerve impairment of the left lower extremity are secondary to his service-connected left arm condition.  Specifically, he reports that his left hand and thumb were injured as he could not feel his hand when cleaning a fish after service.  See April 2013 statement.  He contends that he injured his right knee and developed sciatica in the left lower extremity after he had to jump off of his bicycle since his left hand would not function correctly to operate the hand brake due to his service-connected left arm condition.  See April 2013 statement; September 2015 VA Form 9; March 2014 Board hearing transcript, pp. 10-11, 14-15.
VA treatment records show diagnoses of left leg sciatica, left thumb numbness, and left hand pain.  He had left thumb surgery in May 2013.  The March 2015 VA peripheral nerve condition examination noted mild paresthesias, dysesthesias, and/or numbness of the left lower extremity and limited range of motion on thumb adduction.  See March 2015 VA examination.  However, the examiner opined that, based on the information available, and lack of objective evidence of a peripheral nerve injury on EMG/NCS or imaging of the cervical spine to evaluate for a cervical stenosis/ nerve root impingement, there was no clear support for any peripheral nerve condition related to his shoulder separation.  Id.  The Board finds this opinion to be inadequate as it did not adequately address whether the Veteran’s left hand and/or thumb condition and/or sciatic nerve impairment of the left lower extremity were aggravated by his service-connected left arm condition.  See El-Amin v. Shinseki, 26 Vet. App. 136 (2013).
In regard to the Veteran’s claim for entitlement to service connection for a right knee condition, a May 1981 service treatment record shows right knee pain and a diagnosis of patellofemoral pain syndrome.  VA treatment records also show a right knee injury due to a bike accident in October 2009, degenerative changes of the right knee, and a right knee arthroscopy in July 2014. 
The Board finds that new VA examinations are warranted to determine whether the Veteran’s right knee condition, left hand and/or thumb condition, and/or sciatic nerve impairment of the left lower extremity are related to his service or caused or aggravated by his service-connected left arm and/or left shoulder conditions.
Further, the Veteran testified that he is unemployed and that his left arm condition has impacted his employment.  See December 2012 DRO hearing transcript, pp. 5-6.  When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran’s claim for TDIU is inextricably intertwined with his pending claims.  Thus, a decision by the Board on the Appellant’s TDIU claim would, at this point, be premature.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.).
The matters are REMANDED for the following action:
1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his claims that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file.  Any negative response should be in writing and associated with the claims file.
2. Provide the Veteran an opportunity to submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU.
3. After associating any outstanding records with the claims file, schedule the Veteran for a VA examination to determine the etiology of any right knee condition, left hand and/or thumb condition, and/or sciatic nerve impairment of the left lower extremity found to be present currently or proximate to the appeal.  The claims file should be reviewed and all necessary tests should be conducted.  Thereafter, please respond to the following: 
(a) Diagnose all right knee conditions, left hand and/or thumb conditions, and/or sciatic nerve impairment of the left lower extremity. 
(b) For each diagnosed right knee condition, left hand and/or thumb condition, and sciatic nerve impairment of the left lower extremity, opine whether it is at least as likely as not that it had its onset during active service; or, is causally related to the Veteran’s service.
Rationale must be provided for the opinion proffered.  In rendering this opinion, the examiner should acknowledge the Veteran’s right knee condition in service in May 1981.
(c) For each diagnosed right knee condition, left hand and/or thumb condition, and sciatic nerve impairment of the left lower extremity, opine as to whether it is at least as likely as not that the condition was caused by the Veteran’s service-connected left arm and/or shoulder conditions.  Rationale must be provided for the opinion proffered.  
(d) For each diagnosed right knee condition, left hand and/or thumb condition, and sciatic nerve impairment of the left lower extremity, opine as to whether it is at least as likely as not that the condition was aggravated by the Veteran’s service-connected left arm and/or shoulder conditions.  
Rationale must be provided for the opinion proffered.  In rendering this opinion, the examiner should acknowledge the VA treatment records showing that the Veteran injured his right knee in a bike accident in October 2009.
4. After consideration of all additional evidence and conducting any additional development deemed necessary, issue an SSOC addressing the Veteran’s claims for a rating in excess of 30 percent for service-connected left arm limitation of motion, residual of injury, entitlement to service connection for a right knee condition, entitlement to service connection for a left 
 
hand and/or thumb condition, entitlement to service connection for sciatic nerve impairment of the left lower extremity, and entitlement to a TDIU.

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Samuelson, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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