BVA9506474 DOCKET NO. 90-43 224 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to an increased rating for depressive reaction, currently evaluated as 50 percent disabling. 4. Entitlement to extension of a temporary total rating beyond December 31, 1988, for convalescence following a period of hospitalization from October to November 1988. 5. Whether reduction of a 20 percent rating to a noncompensable level for left foot callosities was proper. 6. Whether reduction of a 10 percent rating to a noncompensable level for a urinary tract infection was proper. 7. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from November 1972 to November 1976. In June 1991, this case was remanded by the Board of Veterans' Appeals (Board) for further development. Following the June 1991 remand, the RO, in a December 1991 decision, granted an increased (50 percent) rating for depressive reaction and granted an increased (40 percent) rating for a service-connected low back strain. In this same decision, the RO reduced a 20 percent rating for left foot callosities and a 10 percent rating for a urinary tract infection to noncompensable levels. Despite the reductions, the combined schedular rating increased from 60 percent to 70 percent, based on the awards for depression reaction and low back strain. A notice of disagreement with the reductions was received from the veteran in January 1992. A statement of the case was issued in April 1992. In a September 1992 rating decision, the RO, among other things, denied a total rating based on individual unemployability due to service-connected disabilities. A supplemental statement of the case addressing this issue and others was issued in October 1992. Received in November 1991 was VA Form 1-9, Appeal to Board of Veterans Appeals, wherein a desire to appeal the rating reductions and the total rating, along with other issues previously appealed, was expressed. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that she experiences bilateral knee difficulties because of an altered gait due to her service- connected left foot callosities and that a grant of service connection is therefore warranted. She also asserts that her psychiatric disability causes problems with her sleep. She says she has problems each day with breathing and shaking that occur intermittently throughout the day. Consequently, she maintains that an increased rating is warranted. As for the rating reductions, she contends that she still experiences recurring urinary tract infections that require regular treatment with medication and that her foot hurts when walking, implying that the reductions should not have occurred. She maintains that the combined effect of her service-connected disabilities is unemployability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that, to the extent that a December 1991 rating decision reduced a 20 percent rating for left foot callosities and a 10 percent rating for a urinary tract infection to noncompensable levels, this rating decision is void ab initio. (Consideration of the other issues on appeal is deferred pending completion of the development sought in the REMAND portion of this decision.) FINDINGS OF FACT 1. The veteran is service-connected for left foot callosities, a disability for which a 20 percent rating was assigned effective from May 1, 1985. 2. The veteran is service-connected for a urinary tract infection, a disability for which a 10 percent rating was assigned effective from February 14, 1979. 3. By a December 1991 rating decision, the 20 percent rating for left foot callosities and the 10 percent rating for a urinary tract infection were reduced to noncompensable levels. This reduction action did not take into consideration the provisions of 38 C.F.R. § 3.344 (1991). CONCLUSIONS OF LAW 1. The December 1991 reduction of a 20 percent rating for left foot callosities to a noncompensable level was improper. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.344 (1994). 2. The December 1991 reduction of a 10 percent rating for a urinary tract infection to a noncompensable level was improper. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.344 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 C.F.R. § 3.105(e) (1994) require that notice and an opportunity to respond be given to a veteran when the originating agency proposes the reduction of a rating. However, this regulation is not applicable in situations, such as the veteran's case, where the reduced rating does not result in a reduction of compensation payable. See 38 C.F.R. § 3.105(e) (1994); Department of Veterans Affairs, Adjudication Procedure Manual, M21-1, Part VI, paragraph 9.05 (1993)(hereinafter referred to as "Manual"); O.G.C. Precedent 71-91 (1991). Consequently, it would appear that the RO acted in accord with governing regulations when it reduced the 20 percent rating for left foot callosities and the 10 percent rating for a urinary tract infection without advance notice to the veteran. However, VA must follow all of it own regulations. See Browder v. Derwinski, 1 Vet.App. 204 (1991). Section 3.105(e) is not the only regulation that addresses the reduction of ratings for a service-connected disability. The provisions of 38 C.F.R. § 3.344 (1994) require that certain precautions be taken before reducing a rating that has been in effect for five years or more. (The regulation as it appeared in the 1991 edition of the Code of Federal Regulations is the same as it appears in the 1994 edition. 38 C.F.R. § 3.344 (1991)) When the RO fails to consider these precautions, the rating reduction is deemed void ab initio. See Dofflemyer v. Derwinski, 2 Vet.App. 277 (1992); Brown v. Brown, 5 Vet.App. 413 (1993). In the veteran's case, when the reduction action was taken in December 1991, the 20 percent rating for left foot callosities and the 10 percent rating for urinary tract infection had already been in effect for more than five years--since 1985 for the left foot and since 1979 for the urinary tract infection. "Regardless of how long a rating had been in effect at the time a reduction is proposed or ordered, if a reduction actually takes effect after a rating has been in effect for five years, then it is a reduction of a 'rating[] which ha[s] continued' for five years or more, and, hence, becomes subject to the requirements of § 3.344." Brown v. Brown, 5 Vet.App. 413, 418 (1993) (quoting 38 C.F.R. § 3.344(c) (1993). It is noteworthy that the RO did not mention § 3.344 in either the December 1991 rating decision or the April 1992 statement of the case. Consequently, because it did not consider § 3.344, the reduction action is void ab initio. The Board notes that, while the reduction action appears to have been based on one VA examination conducted in May 1990, the earlier assigned 20 and 10 percent ratings for the left foot and urinary tract infections, respectively, were arrived at and continued over the years on the basis of repeated examinations, including some evaluations by experts in these disabling disorders. A reduction should occur only on the basis of equally thorough evaluations. See 38 C.F.R. § 3.344(a) (1994). ORDER Restoration of a 20 percent evaluation for service-connected left foot callosities, effective from May 1, 1985, is granted. Restoration of a 10 percent evaluation for service-connected urinary tract infection, effective from February 14, 1979, is granted. REMAND Analysis of the question of entitlement to a total rating based on individual unemployability turns, at least in part, on the assigned ratings given to each service-connected disorder. See 38 C.F.R. § 4.16(a) (1994). Since the RO has not yet adjudicated the question of unemployability in light of the 20 percent rating for left foot callosities and the 10 percent rating for a urinary tract infection, further action is required. The Board also notes that the veteran has contended that her knee difficulties were brought about by her already service-connected left foot disorder and an accompanying altered gait. An August 1985 letter from P. Guthikonda, M.D., indicates that problems with the veteran's left foot and her right knee were "getting interlinked." Records dated in October 1985 show that she had a marked limp following a bunionectomy, having transferred most of her weight bearing to the right lower extremity. She complained of pain in both knees. In May 1986, an orthopedic consultation was recommended because it was thought that the veteran was likely compensating in her gait and experiencing pain in other joints. Additionally, a July 1988 record prepared by Patrick J. Caputo, D.P.M., shows that she had an antalgic gait with associated knee pains. These reports strongly suggest a relationship between the veteran's service-connected left foot disability and the development of knee disability. However, consideration must be given to whether any etiological relationship is a "proximate" one. See 38 C.F.R. § 3.310(a) (1994). In order to decide this question, expert opinion is required. As for the claim for an increased rating for depressive reaction, the Board notes that this disability was characterized as "severe" in May 1990. However, no Global Assessment of Functioning (GAF) score was given. Consequently, this characterization is of little use, particularly since the examiner provided very little analysis of the overall effect of the symptoms on the veteran's ability to function. See 38 C.F.R. § 4.130 (1994) (the examiner's classification of the disease as "mild," "moderate," or "severe" is not determinative of the degree of disability). Hence, the case is REMANDED for the following actions: 1. An orthopedist should be asked to review the claims folder, examine the veteran, and provide an opinion regarding the etiology of her knee disability(ies). Specifically, the examiner should state whether it is at least as likely as not that a right or left knee disability began as a result of the veteran's service- connected left foot disability. All findings, opinions and bases therefor should be set forth in detail. 2. A psychiatrist should be asked to review the claims folder, examine the veteran, and provide an opinion regarding the effect her psychiatric symptoms have on her ability to work. Specifically, a GAF score should be provided, along with an explanation of what the score means. All findings, opinions and bases therefor should be set forth in detail. 3. With the exception of the propriety of the December 1991 reduction action, the RO should take adjudicatory action on each issue appealed. (The Board notes that argument and comment submitted on the veteran's behalf following the Board's June 1991 remand, including testimony provided in February 1993, did not address the claim for an extension of a temporary total rating beyond December 31, 1988. The RO should clarify whether the veteran wishes to continue her appeal of this issue.) If any benefit sought by the veteran is denied, a supplemental statement of the case should be issued. After the veteran and her representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until she receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).