Citation Nr: 1307026 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-42 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the reduction of the Veteran's evaluation for his service-connected degenerative disc disease of the thoracolumbar spine, from 20 percent to 10 percent as of December 1, 2010, was proper. 2. Entitlement to a disability evaluation in excess of 20 percent for a thoracolumbar spine disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1974 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and a September 2010 rating decision of the RO in Atlanta, Georgia, reducing the Veteran's disability evaluation for his thoracolumbar spine disability from 20 percent to 10 percent. The issue of entitlement to a disability evaluation in excess of 20 percent for a thoracolumbar 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. The evidence of record did not show a material improvement in the Veteran's thoracolumbar spine disability that was reasonably certain to be maintained under the ordinary conditions of life prior to reducing the evaluation for this disability from 20 percent to 10 percent, effective as of December 1, 2010. 2. The reduction in the Veteran's rating for his thoracolumbar spine disability from 20 percent to 10 percent, effective as of December 1, 2010, was improper. CONCLUSION OF LAW The criteria for restoration of a 20 percent rating for degenerative disc disease of the thoracolumbar spine, effective as of December 1, 2010, have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 3.105(e), 3.344 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As the Board's decision to grant the claim of restoration of a 20 percent disability evaluation for degenerative disc disease of the thoracolumbar spine is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 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. Analysis For historical purposes, the Veteran was originally granted service connection for a thoracolumbar spine disability in a September 1995 rating decision. A 20 percent disability evaluation was assigned, effective as of February 1, 1995. In February 2008, VA received a claim from the Veteran seeking a higher disability evaluation for his service-connected low back disability. At the time of receipt of this claim, his 20 percent disability evaluation had been in effect for just over 13 years. In a September 2008 rating decision, the Veteran's disability evaluation was decreased to 10 percent, effective as of April 4, 2008. The Veteran was not provided with a proposal to reduce his benefits prior to this reduction, nor was he informed on actions he could take to dispute the propriety of any proposed reduction. VA received a timely notice of disagreement to the reduction of the Veteran's benefits in February 2009. The 20 percent disability evaluation was subsequently restored, as of April 4, 2008, in a September 2010 statement of the case. It was determined that the September 2008 rating decision contained clear and unmistakable error (CUE). However, his disability evaluation was again reduced to 10 percent, effective as of December 1, 2010. This was followed by a September 2010 Decision Review Officer (DRO) decision, effectuating the reduction. The Veteran appealed this decision to the Board in September 2010. Congress has provided that a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. Not only must it be determined that an improvement in a disability has actually occurred at the time of the reduction, but it must also be shown that the improvement actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Pursuant to 38 C.F.R. § 3.344(a) and (b), disability ratings which have continued for long periods of time at the same level (5 years or more) may not be reduced without the following: (1) Review of the entire record of examinations and the medical-industrial history to ensure that the current examination is full and complete; (2) The examination must be as full and complete as the examination upon which the original award was based; (3) Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated; (4) Ratings on account of disease which become comparatively symptom free after prolonged rest will not be reduced on examinations reflecting the result of bed rest; (5) Where material improvement is shown, consideration must be given to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life; (6) If doubt remains, the rating will be continued subject to reexamination within a specified period of time (18, 24, or 30 months). For ratings in effect at the same level for less than 5 years, reexaminations disclosing improvement, physical or mental, in the disability will warrant reduction in the rating. The Veteran was afforded a VA examination in May 2010. This examination report appears to reflect material improvement in the Veteran's thoracolumbar spine disability. According to the examination report, the Veteran did not experience flare-ups of his low back pain and he was capable of pain free motion, with flexion to 80 degrees, extension to 10 degrees, bilateral lateral flexion to 25 degrees and bilateral lateral rotation to 25 degrees. These results are in contrast to the prior VA examination report of April 2008. According to this report, the Veteran experienced weekly flare-ups of thoracolumbar symptoms, resulting in his back becoming very stiff. Also, while the Veteran was capable of flexion to 90 degrees during this examination, pain was evident starting at 50 degrees. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Not only do the above examination reports reflect a rather drastic change in the Veteran's degree of symptomatology, but the May 2010 report also suggests that the Veteran was exaggerating his symptomatology. The examiner did not give specific examples as to how this determination was reached. The Veteran had been examined by VA on three earlier occasions in April 1995, May 1997 and April 2008, and he was never previously accused of exaggerating his symptomatology. In fact, the April 1995 VA examination report reflects that despite the Veteran's tendency not to complain, it was apparent that he had actually experienced pain due to problems with activities such as dressing and getting onto the examination table. In light of the vastly different examination results from 2008 to 2010, and the questionable reliability of the May 2010 VA examination, the Board finds that it is not reasonably certain that the reported improvement in the Veteran's thoracolumbar spine disability will be maintained under the ordinary conditions of life. See id. The Veteran had been service-connected for a thoracolumbar spine disability for some 15 years prior to the May 2010 VA examination. According to an April 1995 VA examination report, the Veteran was experiencing constant low back pain that was getting worse, resulting in problems bending over and reaching. The Veteran also reported pain that was aggravated by moving during his May 1997 VA examination. Flexion was restricted to 50 degrees at this time due to pain. The Veteran was again found to only have pain free flexion to 50 degrees upon examination in April 2008. A private treatment report dated January 2009 also reflects severe pain when pressing on the low back while moving. The May 2010 VA examination report reflects that it was the examiner's opinion that the Veteran was yielding unreliable and inconsistent results. The examiner subsequently indicated that there was no pain on examination, despite the Veteran's subjective complaints during the examination that were deemed out of proportion to the objective examination findings. Nonetheless, the examiner concluded that this disability resulted in significant effects on the Veteran's usual occupation. The examiner failed to discuss the Veteran's extensive history of painful motion. The Court has consistently held that when an RO reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The evidence demonstrates a history of low back pain on motion spanning back to 1995. The evidence has consistently reflected that the Veteran was incapable of forward flexion of the thoracolumbar spine past 50 degrees. The Board finds that a single examination report in which the Veteran was suspected of providing subjective complaints disproportionate to the objective examination findings is insufficient to demonstrate that the Veteran in fact has a material improvement to his thoracolumbar spine disability that will be maintained under the ordinary conditions of life. The proper course of action in this case would have been to continue the previous rating subject to reexamination. See 38 C.F.R. § 3.344. As this was not done, the September 2010 reduction in the Veteran's benefits from 20 percent to 10 percent, as of December 1, 2010, was improper. ORDER The reduction from a 20 percent disability evaluation to a 10 percent disability evaluation for a thoracolumbar spine disability, as of December 1, 2010, was improper; restoration of a 20 percent disability evaluation for a thoracolumbar spine disability, as of December 1, 2010, is granted. REMAND The Veteran also contends that he is entitled to an evaluation in excess of 20 percent for his service-connected thoracolumbar spine disability. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was last afforded a VA examination to determine the severity of his service-connected thoracolumbar spine disability in May 2010. As discussed in the previous section, the reliability of this examination is not entirely clear. Not only does the examination report suggest a somewhat dramatic improvement in the Veteran's symptomatology, but it also suggests that the Veteran was exaggerating his symptomatology. The Veteran had been examined by VA on three earlier occasions, never once being accused of exaggerating his symptomatology. In fact, the April 1995 VA examination report reflects that despite the Veteran's tendency not to complain, it was apparent that he had pain due to problems with activities such as dressing and getting onto the examination table. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Veteran should be scheduled for a new VA examination since it has been nearly three years since his last examination and since the reliability of this examination report is not entirely clear. Finally, the most recent record of VA medical treatment associated with the Veteran's physical claims file and his Virtual electronic file is dated June 2010. Records prepared since this time should be obtained from the Gainesville VA Medical Center (VAMC). Accordingly, the case is REMANDED for the following action: 1. Obtain records of treatment from the Gainesville VAMC prepared since June 2010. All records that are obtained must be incorporated into the Veteran's claims file, either physically or electronically. 2. The Veteran should be scheduled for a VA examination before an appropriate specialist(s) to determine the current level of severity of his service-connected thoracolumbar spine disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect review of these items. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's spine disability, including limitation of motion and any periods of incapacitation due to intervertebral disc syndrome. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 3. After completion of the above, the claim should be reviewed in light of any new evidence. If the claim is not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs