Citation Nr: 0812904 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-27 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to restoration of a 40 percent evaluation for the lumbar spine disability, currently rated as 20 percent disabling. 2. Entitlement to an increased evaluation for the lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service from March 1976 to October 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the San Juan, the Commonwealth of Puerto Rico Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the appellant requested a personal hearing at the RO in his August 2005 VA Form 9. That hearing was scheduled for October 27, 2005. On that date, the appellant asked that his scheduled hearing be cancelled. Since no outstanding hearing request exists, the case is now ready for appellate review. The issue of an evaluation in excess of 40 percent for the lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a July 2000 rating action, a 40 percent evaluation was assigned for the appellant's lumbar spine disability, effective April 4, 2000. 2. By a rating action in December 2004, the RO proposed a reduction for the lumbar spine disability evaluation and the appellant was notified that same month of the proposed reduction from 40 percent to 20 percent. 3. A May 2005 rating decision reduced the evaluation for the appellant's lumbar spine disability from 40 percent to 20 percent evaluation, effective from August 1, 2005. 4. The RO complied with the procedural requirements of 38 C.F.R. § 3.105(e). 5. The 40 percent lumbar spine disability evaluation had been assigned for more than five years. 6. The provisions of 38 C.F.R. § 3.344 were not considered and applied, and the clinical evidence of record at the time of the May 2005 rating action fails to demonstrate sustained material improvement in the appellant's lumbar spine disability under the ordinary conditions of life. 7. The RO's May 2005 rating action reducing the disability evaluation for the appellant's lumbar spine disability from 40 percent to 20 percent was void ab initio as not in accordance with the law. CONCLUSION OF LAW The criteria for the restoration of the 40 percent schedular disability evaluation for the appellant's lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this decision, the Board restores the lumbar spine disability evaluation to 40 percent, which represents a complete grant of the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where 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. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The veteran is also to be informed that he/she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105(e). The instant case involves the appellant's disagreement with a rating decision which reduced from 40 percent to 20 percent the evaluation of his service-connected lumbar spine disability. The 40 percent rating was in effect from April 2000 through July 2005, a period of more than five years. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction). Therefore, the requirements pertaining to reductions of ratings that have been in effect for at least five years are applicable. 38 C.F.R. § 3.344(a),(b). In this case, the Board finds that the RO provided the appellant with appropriate notice of the proposed reduction of his lumbar spine evaluation in a December 2004 letter. Moreover, the appellant subsequently sent a written statement indicating that he did not think that the proposed reduction was warranted and his statements were considered by the RO. The appellant did not request a predetermination hearing. The proposed reduction was effectuated in a May 2005 rating decision, effective August 1, 2005. Therefore, the Board determines that the RO's reduction of the evaluation of the appellant's lumbar spine disability was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The provisions above apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The appellant underwent a VA spine examination in September 2004; the examiner did not have the claims file to review in conjunction with the examination. The appellant complained of worsening low back pain and described it as constant; he reported that the back pain radiated. He also said that he experienced exacerbations of the back condition and complained of decreased ambulation secondary to flare-ups of the lumbar spine disability. The examiner noted that the appellant was presently receiving treatment for his back disability and that the appellant occasionally needed assistance to dress his lower extremities. On physical examination, the appellant had a normal gait. He demonstrated 70 degrees of forward flexion; 20 degrees of extension; 25 degrees of right and left lateral flexion; and 25 degrees of right and left rotation. The appellant had pain with flexion and extension. There were lumbar spasms, although the examiner stated that no muscle spasm or guarding was severe enough to result in an abnormal gait. Sensory testing was intact. There appellant had 5/5 strength of the lower extremities bilaterally. He also had normal muscle tone. The examiner did not include any discussion of the frequency or duration of any incapacitating episodes. The examiner rendered diagnoses of degenerative disc disease (DDD) L3-4, L4-5 and L5-S1 with disc protrusion at each level, and lumbar myositis. The appellant's lumbar spine disability rating had been increased to 40 percent in a July 2000 rating decision based on the findings contained in the report of the VA spine examination conducted in April 2000, with a June 2000 supplemental report after review of the claims file. The appellant complained of moderate pain and of radiation of pain. He reported private medical treatment and the use of pain medication. The appellant stated that he experienced two acute severe bouts of low back pain per month for which he sought medical treatment and then bed rest. On physical examination, the appellant had no pain on motion or muscle spasms. There was no tenderness to palpation of the lumbar paravertebral muscles. The appellant had a normal gait cycle. There was no muscle atrophy of the lower extremities. The appellant exhibited 40 degrees of forward flexion; 25 degrees of extension; 25 degrees of right and left lateral flexion; and 25 degrees of right and left rotation. As discussed above, a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. When the RO assigned a 40 percent rating for the appellant's lumbar spine disability, the evaluation was primarily based on an April 2000 VA examination which showed that the appellant had limitation of motion and two periods of exacerbations per month for which he needed medical treatment and bed rest. There were negative findings during that examination for spasms of the lower back and there was no finding of any painful motion. The May 2005 rating decision that reduced the back disability rating to 20 percent was based on the report of a VA examination conducted in September 2004 which showed the existence muscle spasms and painful motion. In addition, private medical records dated between January 2003 and May 2004 also indicate the existence of lumbar spine spasms. While the limitation of motion for flexion was improved during the September 2004 VA examination compared to the April 2000 VA examination, the appellant's lumbar spine extension was worse and his lateral flexion and rotation range of motion measurements were the same. In addition, the appellant demonstrated pain on motion during the September 2004 examination; this was not documented in the earlier VA examination. The Board notes that the examiner at the September 2004 VA examination did not review the appellant's claims file. See Tucker v. Derwinski, 2 Vet. App. 201, 203 (1992) (reversing VA's reduction of an appellant's schedular rating based on an examination report that did not include a review of the claims file by the examiner.) In 2000, there had been review of the appellant's claims file by the examiner as reflected in the May 2000 report. After considering the pertinent medical history, as detailed above, the Board finds that the RO's May 2005 rating action to reduce the appellant's disability evaluation for his lumbosacral disability from 40 percent to 20 percent did not meet the regulatory standards of 38 C.F.R. § 3.344 and was therefore improper. When viewed in total, the evidence of record does not clearly warrant the conclusion that sustained improvement has been demonstrated for the appellant's lumbar spine disability. The evidence does not make it reasonably certain that any improvement shown at the September 2004 examination will be maintained under the ordinary conditions of life. Furthermore, reduction based on an examination that did not include any review of the low back disability in relation to its history is ill-advised. The Board has reviewed the record and finds that the reduction was improper. The medical evidence of record that was used by the RO as the basis for the reduction do not show sustained material improvement in the appellant's lumbar spine disability. These records show that the appellant was receiving medical treatment for his service connected low back condition on a regular outpatient basis. Furthermore, the medical reports indicate that the appellant had developed increased symptomatology, including muscle spasms and pain on motion, after the effective date of the 40 percent evaluation. In addition, there is no evidence reflecting improvement under the ordinary conditions of life. Because the records show that the appellant was receiving continuing treatment, including medication, and because he was shown to continue to experience pain and pain on motion due to the lumbar spine disability, as well as muscle spasms and exacerbations of symptoms, the Board cannot find that there is any basis in these records to conclude that the appellant had attained sustained material improvement in his service- connected lumbar spine disability under the ordinary conditions of life. 38 C.F.R. §§ 3.343(a), 3.344(a). There is nothing in the evidence of record to show that the RO considered 38 C.F.R. § 3.343(a) or 38 C.F.R. § 3.344(a)(c) when they reduced the 40 percent rating in May 2005. Disregarding the fact that the clinical evidence of record at the time of the RO's May 2005 rating decision clearly failed to indicate material improvement in the appellant's lumbar spine condition including improvement under the ordinary conditions of life, the RO did not even address the question of material improvement. In addition, while the 40 percent rating had been in effect more that 5 years, the reduction was based on a single examination in September 2004 in which it is stated that the examiner did not review the claims file. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Dofflemyer v. Derwinski, 2 Vet. App. 277, 282 (1992) that the failure to consider and apply either the provisions of 38 C.F.R. § 3.343(a) or38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. As the RO failed to apply the provisions of 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 in its reduction of the appellant's disability evaluation for his lumbar spine DDD and myositis from 40 percent to 20 percent, the Board finds that the May 2005 rating decision was void ab initio as not in accordance with the law, and thus the Board has no legal option but to restore the 40 percent schedular rating. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.343(a) and 38 C.F.R. § 3.344(a)(c). ORDER Entitlement to restoration of a 40 percent evaluation for the lumbar spine disability is granted, effective August 1, 2005, subject to the law and regulations governing the awards of monetary benefits. REMAND A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED for action as described below. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. The appellant underwent a VA medical examination in September 2005; the examiner did not review the claims file. As the medical examination report of record was based on incomplete medical records, it is of little or no probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (Regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). In addition, there is no medical notation of record delineating whether the appellant's current lumbar spine degenerative disc pathology involves incapacitating episodes, including their frequency, duration and severity. A recent decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. On remand, readjudication should reflection consideration of staged ratings. See also Fenderson v. West, 12 Vet. App. 119 (1999). These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claims on appeal. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007) and implementing regulations found at 38 C.F.R. § 3.159 (2007) is completed. In particular, the AMC/RO must notify the appellant of the information and evidence needed to substantiate his claim, what part of such evidence he should obtain and what part the Secretary will attempt to obtain on his behalf, the types of evidence he may submit to demonstrate the worsening or increase in severity of the service- connected lumbar spine disability, the effects of the service-connected lumbar spine disability on his daily life and employment, and notify the appellant of the criteria (including specific measurement or test result) under the Diagnostic Code which will be used to evaluate his disability, as well as any alternate Diagnostic Codes which might be applicable. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The appellant should be told to submit all pertinent evidence regarding his claim he has in his possession. 2. The AMC/RO should obtain from the appellant the names and addresses of all private physicians and/or medical facilities that have provided him with any treatment for his lumbar spine disability since 2004, and secure all available relevant reports not already of record from those sources. In particular, the records from Grupo Fisiatrico De Bayamon must be obtained. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims files should contain documentation of the attempts made. The appellant and his representative should also be informed of the negative results and be given opportunity to secure the records. 3. After completing any additional notification and/or development action deemed warranted by the record, the AMC/RO should schedule the appellant for an appropriate VA examination to assess the nature, severity and extent of the appellant's thoracolumbar spine disability. The entire claims file must be reviewed by the examiners in conjunction with each examination and the reports should state that such review has been accomplished. All necessary tests, including x-rays, should be conducted and the examiners should review the results of any testing prior to completion of the reports. All pertinent x-ray, CT scans and MRI results should be discussed. After examining the appellant and reviewing his claims file, the examiners must provide a comprehensive report including complete rationales for all conclusions reached. The examiner should identify objective manifestations attributable to the appellant's service-connected thoracolumbar spine disability. The examiner should state whether the appellant's thoracolumbar spine exhibits ankylosis. Any musculoskeletal and neurologic dysfunction involving the thoracolumbar spine should be described in detail. The examiner should describe the extent, if any, the appellant has any incapacitating episodes, an altered gait or reduced function in the lower body due to lumbar spine disability. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiners should be requested to describe whether any reported pain significantly limits the function of the appellant's back during flare-ups or when the back is used repeatedly. Any limitation of lumbar function must be clearly identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner must specify the frequency and duration of any "periodic flareups" and the effect the lumbar spine disability has upon appellant's daily activities. The examiner should identify symptoms due to disc syndrome. The symptoms should be characterized as causing mild, moderate or severe incomplete paralysis/neuritis/neuralgia or complete paralysis for each nerve affected. The examiner is also requested to specify the frequency and duration of the appellant's incapacitating episodes and the effect they have upon his daily activities. The degree of functional impairment or interference with daily activities, if any, by the service- connected lumbar spine disability should be described in detail (e.g., any lifting restrictions). The examiner should set forth all findings and conclusions in a legible report. 4. Thereafter, the AMC/RO should consider all of the evidence of record and re-adjudicate the appellant's appeal. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, regulations, Diagnostic Codes, and Court cases, to include Hart v. Mansfield, 21 Vet. App. 505 (2007). 5. If any benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the increased rating issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs