Citation Nr: 1309802 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 09-09 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the rating reduction from 40 percent to 20 percent for low back strain, effective March 1, 2008, was proper. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A notice of disagreement was received in February 2008, a statement of the case was issued in January 2009, and a substantive appeal was received in March 2009. In a May 2012 decision, the Board found, in pertinent part, that the reduction of the Veteran's low back disability rating from 40 percent to 20 percent, effective March 1, 2008, was proper, and found that a rating in excess of 20 percent was not warranted. The appellant subsequently filed an appeal with the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for remand in October 2012, requesting that the Court vacate the portion of the Board's May 2012 decision that pertained to both the reduction and the increased rating components of her low back strain claim. In an October 2012 Order, the Court granted the joint motion, vacating the Board's May 2012 decision as it pertained to the Veteran's low back strain and remanding the claim to the Board for compliance with directives that were specified by the joint motion. The May 2012 Board decision also remanded a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). There is no indication that the requested development has been completed or that the claim has been readjudicated, and it has not been recertified to the Board. Thus, the Board does not have jurisdiction to decide the TDIU claim. In light of the decision, as discussed below, to restore the 40 percent rating for the Veteran's low back strain, the question of whether a rating in excess of 20 percent has become moot and is no longer part of the appeal. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. This evidence has been considered in the following decision. FINDINGS OF FACT 1. The Veteran was awarded a 40 percent disability rating for service connection for a low back strain, effective February 14, 2006. 2. In a rating decision of May 2007, the RO proposed to decrease the evaluation for the low back disability from 40 percent to 20 percent, based on evidence of improved flexion as shown by clinical evidence dated in February and April 2007. The Veteran was advised of this proposed action in a May 2007 letter. 3. In a rating decision issued in December 2007, the RO reduced the evaluation for lumbosacral strain from 40 percent to 20 percent effective March 1, 2008. 4. At the time of the rating reduction effective in December 2007, the 40 percent rating for the Veteran's service-connected low back strain had been in effect for less than five years. 5. The medical evidence of record at the time of the December 2007 decision did not persuasively demonstrate a sustained improvement in the Veteran's low back strain under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the disability rating for the Veteran's service-connected low back strain below 40 percent was not proper, and the 40 percent disability rating is restored from March 1, 2008. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.105(e), 3.321(b)(1), 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). However, the Board notes that the appeal adjudicated herein stems from disagreement with a 38 C.F.R. § 3.105(e) reduction and is not based on a claim or application for benefits. The regulations pertaining to the reduction of evaluations for compensation contain their own notification and due process requirements. See 38 C.F.R. § 3.105(e), (i) (2012). For this reason, the Board concludes that the VCAA does not apply to the claim decided herein. In any event, in light of the favorable decision for the Veteran with respect to the restoration of the reduction, no further discussion of any notification and assistance requirements is necessary at this point. II. Reduction The Veteran has appealed the RO's December 2007 decision to reduce the disability rating of her low back strain from 40 percent to 20 percent, effective March 1, 2008. She contends that the reduction was improper, and that the prior rating should be restored. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. With respect to the issue of the propriety of the reduction, VA regulation 38 C.F.R. § 3.344 pertains to disabilities which are likely to improve and examination reports indicating improvement. In Brown v. Brown, the United States Court of Appeals for Veterans Claims (Court) noted that this regulation applies to ratings which had been continued for long periods of time at the same level (five years or more). Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, the 40 percent rating was in effect from February 14, 2006, to March 1, 2008, less than five years prior to the rating reduction. Thus, various provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability ratings do not apply, and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421. Specifically, VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, VA regulation 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects an increase in the ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In the case at hand, the Veteran's low back strain has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Disabilities of the spine are rated under the general rating formula for diseases and injuries of the spine. This formula applies to disabilities of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. In relevant part, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's low back strain is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Even though the above rating criteria are highly relevant to determining an appropriate disability rating, the determination of the appropriateness of the reduction in this case turns on the question of whether the evidence demonstrates that an improvement in a disability has actually occurred reflecting an increase in the ability to function under ordinary conditions of life and work. For purposes of determining whether the reduction in this case was warranted, the Board will focus upon the evidence pertaining to the Veteran's ability to function under ordinary conditions of life and work. The April 2006 VA examination report reflects that the Veteran complained of low back pain since the 1990s that was getting progressively worse. Her subjective complaints included unsteadiness, numbness, stiffness, weakness, and pain. In relevant part, forward flexion was limited to 30 degrees on repetitive use, with pain at 30 degrees. The Veteran indicated that she was limited to walking less than a half block. She was diagnosed with chronic lumbar strain. It was noted that this disability had significant effects on her occupational activities. It was noted that this disability had moderate effects on her exercising and travelling and no effect on feeding, bathing, dressing, toileting, and grooming. In a June 2006 rating decision, a 40 percent evaluation was granted for lumbosacral strain, effective from February 14, 2006. The RO explained that the grant was based on evidence of forward flexion of the lumbar spine limited to 30 degrees or less. The record contains several statements from the Veteran and her friends, family members, and coworkers attesting to the fact that medical problems, including her back disability, had impaired her functionality and employability. (The Board is limiting its discussion of the lay statements to those that were written in 2006 or later, during the period in which the Veteran was in receipt of the 40 percent rating.) In a September 2006 statement, the Veteran reported that her job at the United States Postal Service entails lifting, standing for long periods of time, and being able to carry 70 pounds or more for certain distances. She reported that she cannot perform her job because of limitations of her back. In an October 2006 statement, the Veteran reported that she is ailing from back and knee pain daily. She reported that the medications she is prescribed are not effective. She reported that she has to wear back and knee braces to assist her, or she cannot stand for long periods of time. She reported that her disabilities are causing her to miss more than three consecutive days at work, which can cause her to lose her job. She included a statement of her job description as a mail handler. This job entails standing at the end of the belt and throwing off tubs containing mail that had been processed. It notes that each day, five to six programs are run and, with each run, mail handlers will throw off an average of 120 to 200 tubs, each tub weighing an average of 25 to 45 pounds. It states that the mail handlers are responsible for ensuring each tub is properly containerized, accurately labeled, and dispatched in a timely manner. It also notes that, at the end of a run, the containers will weigh between 1200 and 2400 pounds and that the mail handlers have to manually push these containers to the dock. She reported that she has to be able to lift up to 70 pounds daily and maintain an efficient pace to perform her job. A November 2006 statement from the Veteran's sister notes that she has observed her sister having excruciating pain in her back from many days of pulling, pushing, bending, and lifting on her job. She has also missed a lot of time from work. A February 2007 VA spine examination notes that the Veteran complained of constant pain and tightening. She also complained of weakness in the legs. It was noted that she had not experienced any incapacitating episodes during the past 12 months. She reported that she is limited to walking a half block. She found it hard to do prolonged standing, pushing, and pulling on the job. She also reported that she could not do much in terms of her activities of daily living. Examination revealed evidence of pain, tenderness, and mild guarding on motion, without evidence of muscle spasms or ankylosis. She was on leave without pay from her job, and had been out of work for the whole year. She was diagnosed with lumbosacral strain and it was noted to have significant effects on her usual occupation. The examiner noted that the Veteran's lumbar spine and right knee conditions make it difficult for her to engage in any physical employment, but that she may be able to perform sedentary employment as long as she has some freedom to change positions periodically. VA records reflect that when the Veteran was seen by VA in April 2007, she complained of constant back pain, increasing with intensity on lifting, prolonged walking, or sitting. Flexion was measured at 45 degrees and extension was to 10 degrees. Myofascial low back pain was diagnosed. In a rating action dated in May 2007, the RO proposed to reduce the 40 percent evaluation in effect for the Veteran's lumbosacral strain to 20 percent, explaining that evidence on file, including a VA examination of February 2007, had shown sustained improvement and failed to reveal that the criteria for an evaluation of 40 percent under Diagnostic Code 5237 continued to be met. In correspondence issued to the Veteran by VA and dated on May 11, 2007, she was advised of the proposed reduction of the evaluation for the low back disability. She was further notified of the opportunity for a hearing, was informed of her appeal rights, and was given 60 days in which to submit additional evidence to show why the compensation payments should be continued at their present level (pursuant to 38 C.F.R. § 3.105(e)). In May 2007, the Veteran provided a statement indicating that she was disputing the decision to reduce her rating for the low back disability, and noting that she experienced constant back pain, which had been a factor in her no longer being employed with the postal service. Thereafter, additional evidence was added to the record consisting of VA records dated to November 2007. However, no clinical findings relating to the low back, such as range of motion findings, are shown in those records. In December 2007, the RO issued a rating decision reducing the rating for the Veteran's low back disability from 40 to 20 percent effective from March 1, 2008. A January 2008 statement from the Veteran's supervisor describes the Veteran's duties, consistent with the Veteran's own October 2006 job description. The supervisor noted that the Veteran must frequently request medical leave because the pushing and pulling of mail processing containers causes her back pain to flare up. She was given a limited duty assignment and position where she remained seated because she was no longer able to stand with limited mobility. She described the Veteran as having been "an excellent employee, her skill with the fork lift, tugger and pallet jack is unmatched with zero accidents over her career." The Board finds that the above evidence does not demonstrate that an improvement in the Veteran's low back disability has actually occurred reflecting an increase in the ability to function under ordinary conditions of life and work. As can be seen from the Board's summary of the pertinent evidence, there was very little evidence of record at the time of the reduction that addressed the level of the Veteran's functional impairment. The Board notes that the medical records, lay statements from others, and the Veteran's own personal statements reflect that the Veteran's occupational functioning has not improved. There is otherwise no evidence of improvement in the Veteran's ability to perform her activities of daily living. Subsequent evidence, including the September 2010 QTC examination report, provides further support to the notion that the Veteran's back disability had not undergone a sustained improvement to justify the rating reduction. For the reasons discussed above, the Board finds that the rating reduction from 40 percent to 20 percent for the Veteran's low back strain, effective March 1, 2008, was not warranted. Therefore, the 40 percent disability rating for the Veteran's low back strain is restored, effective March 1, 2008. ORDER Restoration of a 40 percent rating, effective March 1, 2008, for service-connected low back strain is warranted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs