Citation Nr: 1114255 Decision Date: 04/12/11 Archive Date: 04/21/11 DOCKET NO. 09-42 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to restoration of a 20 percent disability evaluation for residuals of root compression of the cervical spine with degenerative joint disease and headaches, to include the propriety of the reduction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to July 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which decreased the Veteran's disability evaluation for his service-connected residuals of root compression of the cervical spine with degenerative joint disease and headaches to 10 percent disabling, effective April 1, 2009. The Board notes that in the Veteran's first VA Form 9, Appeal to the Board of Veteran's Appeals, received in November 2009, the Veteran indicated that he wanted to have a Board hearing at his local RO. Subsequently thereafter, the Veteran submitted a second VA Form 9 in January 2010 noting that he wanted to have a Board hearing in Washington, D.C. The Veteran was scheduled for a central office hearing for September 30, 2010. However, the record reflects that he failed to report for the scheduled hearing. The Board finds that there is no Board hearing request pending at this time. 38 C.F.R. § 20.702(d) (2010). In December 2008, the Veteran testified at a personal hearing at the RO. A copy of the transcript is of record. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record. See the January 2010 personal statement. In addition, the issue of entitlement to a separate compensable rating for radiculopathy of the upper extremities was been raised by the Veteran during the December 2008 RO hearing. These issues have not been adjudicated and they both are referred to the RO for the appropriate action. FINDINGS OF FACT 1. VA has obtained all information and evidence necessary for an equitable disposition of the Veteran's appeal. 2. In an April 2005 rating decision, the RO granted a 20 percent disability evaluation for the Veteran's service-connected residuals of root compression of the cervical spine with degenerative joint disease and headaches, effective November 10, 2004, on the basis of both limitation of motion and functional loss due to painful motion. 3. Following a February 2008 VA examination, in an August 2008 rating decision, the RO proposed to reduce the disability evaluation for the Veteran's service-connected cervical spine disability from 20 percent to 10 percent disabling. 4. In a January 2009 rating decision, the RO implemented the reduction to 10 percent disabling, effective April 1, 2009. 5. The record demonstrates that at the time the RO reduced the 20 percent disability evaluation assigned to the Veteran's service-connected cervical spine disability, his combined range of motion was greater than 170 degrees and forward flexion was greater than 30 degrees. Muscle spasms, guarding and an abnormal gait were not shown; the evidence shows that the Veteran had continued complaints of pain resulting in limitation of function due to the service-connected cervical spine disability.. 5. The evidence used to reduce the rating from 20 to 10 percent for the Veteran's cervical spine disability does not show a permanent improvement in this disability. CONCLUSION OF LAW The criteria are met for restoration of a 20 percent rating for residuals of root compression of the cervical spine with degenerative joint disease and headaches, effective April 1, 2009. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.105(e), 3.344, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Inasmuch as this case involves a rating reduction rather than a rating increase, there are specific notice requirements, found in 38 C.F.R. § 3.105(e)-(i), which are applicable to reductions in ratings. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating 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 expires. 38 C.F.R. § 3.105(e). When the procedures of 38 C.F.R. § 3.105(e) are applicable, VA must comply with those provisions rather than the notice and duty provisions in the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010). See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc) (standards for review of evidence). As discussed below, the RO complied with the procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran's disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. II. Decision The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In this case, the requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability evaluation from 20 percent to 10 percent for the Veteran's service-connected residuals of root compression of the cervical spine with degenerative joint disease and headaches, were properly carried out by the RO. In an August 2008 rating decision, the RO notified the Veteran of the proposed rating reduction, and the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced. The RO further notified the Veteran that he could request a personal hearing, which he did as previously noted in the introduction of the decision. The RO took final action to reduce the disability evaluation in a January 2009 rating decision, in which the disability evaluation was reduced from 20 percent to 10 percent disabling, effective April 1, 2009. The Veteran was notified of such action by letter dated February 2009. This action was more than 60 days from the time of notice of the proposed action. Thus the RO properly carried out the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability evaluation from 20 to 10 percent disabling for the Veteran's service-connected residuals of root compression of the cervical spine with degenerative joint disease and headaches. The Veteran does not contend otherwise. Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, for other disabilities that are likely to improve, that is, disabilities for which a rating has been in effect for less than five years, re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. Under 38 C.F.R. § 3.344(c), the pertinent disability rating must have continued for five years or more before the criteria in paragraphs (a) and (b) of that section become applicable. As noted in his October 2009 substantive appeal, the Veteran contends that he has been continuously rated at 20 percent disabling for 23 years and 2 months. By way of procedural background, service connection for the cervical spine disability was granted in a January 1986 rating decision. He was assigned a 20 percent disability evaluation, effective August 1, 1985. The Veteran appealed therefrom. Prior to a Board decision, the RO decreased the disability evaluation to 10 percent disabling, effective June 1, 1987 in a March 1987 rating decision. The Board upheld the 10 percent disability evaluation in a February 1988 decision. In November 2004, the Veteran filed an informal claim for increase and as such, a 20 percent disability evaluation was granted in an April 2005 rating decision, with an effective date of November 10, 2004. Subsequently thereafter, in the January 2009 rating decision, the RO reduced the disability evaluation to 10 percent disabling, effective April 1, 2009. The Veteran was rated at 20 percent disabling for less than 2 years before being reduced to 10 percent in March 1987. He was rated at 10 percent disabling for approximately 17 years - June 1, 1987 to November 9, 2004. Thus, the 20 percent rating, from November 20, 2004 to March 31, 2009, had not been in effect for the requisite five-year period of time as set forth at 38 C.F.R. § 3.344(a) and (b). As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are not directly applicable in this case. In considering the propriety of a reduction in this case, a review of the rules for establishing disability ratings is appropriate. Disability ratings are determined by comparing the Veteran's cervical spine disability symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2010). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected cervical spine disability is currently evaluated as 10 percent disabling under Diagnostic Code 5242. The Board notes that effective September 26, 2003, the schedule for rating spine disabilities was changed to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243). The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a 40 to 100 percent evaluation for unfavorable ankylosis of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The pertinent criteria are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height - 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (September 2003). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board is aware that it must make its determination as to whether improvement had been shown between (1) the medical evidence of record at the time of the April 2005 rating decision which granted the 20 percent rating for the Veteran's cervical spine disability, and (2) the medical evidence used to reduce the disability rating to 10 percent. After comparing the evidence, the Board finds that the RO's decision to reduce the Veteran's disability rating from 20 percent to 10 percent was not warranted. Hence, the 20 percent rating will be restored. The evidence used to grant the 20 percent rating for the Veteran's cervical spine disability includes the March 2005 VA examination report. On examination, range of motion testing of the cervical spine showed forward flexion from 0 to 45 degrees without pain, extension backwards from 0 to 35 degrees with pain, lateral flexion from 0 to 35 degrees bilaterally with pain and lateral rotation from 0 to 60 degrees bilaterally with pain. The Veteran reported that his pain had become worse in the last 4 to 5 years and that neck pain occurred approximately once per week for 1 day. The examiner indicated that there was objective evidence of painful motion without spasm or weakness. The April 2005 rating decision assigned a 20 percent rating based on the findings shown on the March 2005 VA examination report. It was determined that additional compensation was warranted based on objective evidence showing functional loss due to pain, weakened movement, excessive fatigability with use, incoordination and flare ups. It was indicated that the 20 percent rating included an additional 10 percent for functional loss due to painful motion. The evidentiary basis for the August 2008 rating decision proposing to reduce the disability evaluation assigned for the Veteran's service-connected cervical spine disability from 20 percent to 10 percent disabling, is contained in the May 2008 VA examination. According to the examination report, range of motion findings of the cervical spine reflected forward flexion to 40 degrees, extension to 40 degrees, left lateral flexion to 45 degrees, right lateral flexion to 45 degrees, left lateral rotation to 60 degrees and right lateral rotation to 60 degrees. It was noted that upon repeated testing times three, the Veteran experienced pain on flexion and extension towards the end of the motion and some noted mild tenderness, but no further decrease in motion, fatigue, weakness, lack of endurance, incoordination, or muscle spasms. The examiner noted that the Veteran reported neck pain that flared up 2 to 3 days per week and that the pain was incapacitating and lasted until he stopped his activities and took medication. The Veteran reported that precipitating factors were repeated turning of his neck with driving and computer work. Alleviating factors were medication and rest. With regard to functional limitation, the Veteran reported that when neck pain flared up it was very difficult to do prolonged computer work and other chores at home that needed repeated neck movements. He indicated that he was able to manage his activities of daily living but that he stopped his computer inspector job in 2002 secondary to neck pain. The Board must now compare the above findings, which were the bases for granting a 20 percent rating, with the evidence used to reduce the Veteran's disability rating to 10 percent to determine whether that was improvement of his service-connected cervical spine disability. Specifically, at the March 2005 VA examination, the Veteran's forward flexion was 0-45 degrees with a combined range of motion of 270 degrees. At the May 2008 VA examination, the Veteran demonstrated forward flexion to 40 degrees and the combined range of motion of the cervical spine was 290 degrees. The Board is not persuaded, based on this one examination report, that the Veteran's cervical spine disability sufficiently improved to warrant a reduction from 20 percent to 10 percent. The Board is aware that the rating criteria require that forward flexion be greater than 15 degrees but not greater than 30 degrees for the assignment of a 20 percent rating. However, the Veteran's forward flexion appears to have slightly decreased from 2005 to 2008 and the only evidence of the used as the basis of the reduction was from one VA examination. In addition to the rating criteria, moreover, VA is required to determine whether a higher rating is warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination of the spine. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. at 204-05 (1995). In this case the Veteran's cervical spine disability is manifested by significant pain which was noted on the 2005 examination and which was the basis for the assigned of 10 percent of the 20 percent rating assigned in the April 2005 rating decision. The Veteran testified in December 2008 at a hearing at the RO to the effect that he continued to have significant pain associated with the cervical spine condition. The Board finds this testimony consistent with the evidence of record and it is credible. Under these circumstances, the Board cannot conclude that the preponderance of the evidence shows a material improvement in the Veteran's service-connected cervical spine disability that is reasonably certain to be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 413. Accordingly, the Veteran is entitled to restoration of the 20 percent rating for his service-connected cervical spine disability. ORDER The reduction of a 20 percent disability evaluation for residuals of root compression of the cervical spine with degenerative joint disease and headaches to 10 percent disabling, effective April 1, 2009, was not proper and the claim for restoration of the 20 percent rating from April 1, 2009 is granted. ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs