Citation Nr: 1315291 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 09-17 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether a reduction from a 40 percent disability rating to a 20 percent disability rating for lumbar strain and degenerative disc disease (DDD) of thoracic spine, effective from March 1, 2008, was proper. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from October 1973 to October 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The issue of entitlement to a total rating for compensation purposes based upon individual unemployability has been raised by the record subsequent to the denial of the same issue by the Agency of Original Jurisdiction (AOJ) in June 2009. It was explicitly raised in the April 2013 Informal Hearing Presentation. Also, in a September 2009 VA treatment record, the Veteran reported he cannot do the work he did previously due to his pain and health issues. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ) since June 2009, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. At the time of the August 2007 proposed reduction of the schedular disability rating for lumbar strain and DDD of thoracic spine, effective March 1, 2008, the disability rating of 40 percent had been in effect for less than five years. 2. In reducing the disability rating for the service-connected lumbar strain and DDD of thoracic spine, effective March 1, 2008, the RO in its December 2007 rating decision met all due process requirements in executing such a reduction. 3. The evidence does not show an actual change to the Veteran's lumbar osteoarthritis and DDD of thoracic spine resulting in an improvement in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 40 percent disability rating for lumbar osteoarthritis and DDD of thoracic spine have been met. 38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the rating for the Veteran's thoracic spine disorder was in effect for less than 5 years, the provisions of 38 C.F.R. § 3.105(e) are applicable. However, as the Board is restoring the 40 percent rating, the question of whether the RO complied with the procedural notice requirements of 38 C.F.R. § 3.105(e) need not be addressed in detail. Similarly, as the Board is granting the benefit sought, further discussion of the notice and assistance requirements of the Veterans Claims Assistance Act of 2000 (VCAA) is unnecessary. I. Procedural requirements 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 procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 40 to 20 percent for lumbar strain and DDD of thoracic spine were properly carried out by the RO. In August 2007, the RO notified the Veteran of a proposed rating reduction, setting forth all material facts and reasons for the reduction. At that time the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced, and to request a predetermination hearing if desired. The Veteran submitted evidence within the 60 day period but did not request a predetermination hearing. The RO took final action to reduce the disability rating in a December 2007 rating decision, in which the rating was reduced from 40 to 20 percent, effective March 1, 2008. The RO informed the Veteran of this decision by letter dated December 11, 2007. II. Substantive requirements As the RO has met the procedural requirements associated with a reduction, the issue now becomes whether the reduction was proper based on the evidence of record. The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344. The Veteran's 40 percent rating for a lumbar strain and DDD of thoracic spine was assigned by a prior rating action of the RO, effective from February 3, 2004, and remained in effect until March 1, 2008, a period of less than five years. Where, as here, a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). Regulations "impose a clear requirement that VA rating reductions...be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, supra at 421. 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. It must also be determined that any such improvement also reflects an improvement in the Veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the 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 demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. The Veteran's lumbar osteoarthritis and DDD of thoracic spine is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The following evaluations are to be assigned for spinal disabilities 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. A 20 percent evaluation will be assigned for a lumbar spine disability where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion (ROM) 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 where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The average normal ROM for the thoracolumbar spine is 90 degrees of forward flexion, and 30 degrees each of extension, lateral flexion bilaterally, and rotation bilaterally. The normal combined ROM for the entire thoracolumbar spine is 240 degrees. General Rating Formula for Diseases and Injuries of the Spine, Note (2). The Veteran was granted entitlement to an evaluation of 40 percent for his lumbar strain and DDD of thoracic spine on the basis of a March 2004 VA examination. That examination showed thoracolumbar flexion limited to 85 degrees without discomfort. Extension was limited to 10 degrees, including on repetition, and the Veteran had discomfort at 15 degrees. Lateral flexion and rotation were normal bilaterally at 30 degrees. On repetition, rotation remained normal but there was a 20-degree reduction in lateral flexion bilaterally. The RO issued the proposed rating reduction in August 2007. The evidence before the RO at this time included three measurements of the Veteran's thoracolumbar spine that had taken place since the March 2004 VA examination. In February 2005, a VA examiner stated that "he could barely flex to 60 degrees and he had to stop...On trying to get him to do repetitive motion with back flexion, he could barely do two when he had to stop because of pain." Extension was limited to 20 degrees, and lateral flexion was limited to 20 degrees bilaterally. Rotation was normal bilaterally. These measurements show a worsening in thoracolumbar forward flexion since the March 2004 VA examination. A November 2006 VA examination showed normal measurements for all thoracolumbar spine movements. However, the examiner stated that the joint function of the spine was additionally limited by pain and lack of endurance after repetitive use, but then lists the additional limitation as 0 degrees. This internally inconsistent report renders unclear the extent to which the Veteran's thoracolumbar ROM was limited by pain at this examination, though it appears that it was limited. The VA examiner also changed the diagnosis of the Veteran's lumbar disability. Prior to this VA examination, the Veteran's low back disability had been characterized as "lumbar strain." The VA examiner opined that "the condition has progressed to early osteoarthritis of the lumbar spine with mild left lumbar convex scoliosis."(emphasis added) Similarly, a July 2007 VA treatment record measured the Veteran's forward flexion at 90 degrees, but noted he had "marked pain with right lumbar facet loading." However, the degree to which pain limited flexion was not recorded. The Veteran's extension was limited to 20 degrees by pain, and lateral flexion was limited bilaterally to 25 degrees by pain. Rotation was not measured. An August 2007 VA primary care note stated that a recent spinal MRI showed extensive DDD. The VA physician assessed, "this pain is slowly getting worse and given his extensive degenerative changes is not likely to significantly improve. For all practical purposes this limits his ability to perform any physical labor or any job which requires prolonged standing. He should likely be considered unemployable." (emphasis added) Significantly, this assessment that the Veteran's chronic back pain was progressively worsening was made 19 days after the RO's letter informing the Veteran of the proposed rating reduction. Thus, when the reduction was proposed, the evidence contained two measurements of forward flexion of the thoracolumbar spine that stated that there was limitation due to pain but did not record the degree of the limitation. In the measurement that did discuss limitation, the examiner was very detailed and stated the Veteran could barely flex to 60 degrees and could barely complete two repetitive motions before he had to stop because of pain. If anything, this shows a worsening of forward flexion from the March 2004 measurement of 85 degrees forward flexion without discomfort. Moreover, the Veteran's primary care physician stated that his chronic back pain was worsening, and the 2006 VA examiner opined that the lumbar disability had progressed to a more serious diagnosis. Lateral flexion had also worsened from normal to 20 or 25 degrees before repetition. When measured, rotation remained normal. The only improvement before the RO at the time of the reduction was extension that had improved to 20 degrees from 15 degrees. Therefore, although the evidence before the RO at the time of the reduction may have shown improvement in extension, it also showed significant worsening of forward flexion, some worsening of lateral flexion, and unchanged rotation. Moreover, before the proposal a VA examiner found the condition had progressed to a more serious diagnosis, and just weeks after the proposal (before it became final), a VA physician stated that the Veteran's chronic back pain was actually worsening. Accordingly, the Board finds that the evidence before the RO at the time of the reduction did not show actual change to the Veteran's lumbar osteoarthritis and DDD of thoracic spine resulting in an improvement in his ability to function under the ordinary conditions of life and work. Significantly, post-reduction evidence confirms that the condition has not demonstrated actual improvement. In December 2007, the Veteran's primary care physician measured forward flexion limited to 40 degrees, extension limited to less than 5 degrees, and lateral flexion limited to 10 degrees bilaterally. The Veteran complained of continued chronic back pain. In September 2008, the Veteran's thoracolumbar ROM was measured at two separate VA appointments. The earlier appointment measured his forward flexion at 80 degrees, his extension at 20 and his lateral flexion at 25 bilaterally. The VA physician did not measure rotation or discuss limitations or repetitions. Three days later, another VA physician measured forward flexion at 60 degrees, full rotation bilaterally, and "some" limitation of extension and lateral flexion bilaterally due to pain. A March 2010 VA examination provides the most recent and thorough measurement of the Veteran's thoracolumbar spine. His forward flexion was limited to 50 degrees by pain and on repetition. Extension was limited to 15 degrees by pain and on repetition. Right lateral flexion was normal on repetition but limited to 20 degrees by pain. Left rotation was normal on repetition but limited to 15 degrees by pain. Left lateral flexion and right rotation remained normal and were not limited by pain or repetition. This VA examiner also characterized the disability as degenerative joint disease of the lumbar spine, as "a result of a progression of the previous diagnosis." In summary, post-reduction evidence shows that the Veteran's forward flexion has been limited to 40, 50, and 60 degrees. The measurement of 80 degrees fails to discuss pain or repetition, and occurred only three days before the measure of 60 degrees limited by pain. The March 2010 examination, measuring forward flexion at 50 degrees, is the most thorough of the post-reduction examinations, and therefore highly probative. The post-reduction measurements of flexion are all decreased from the March 2004 measurement of 85 degrees without discomfort. The evidence shows that the Veteran's forward flexion has remained as limited as the 60 degrees that was measured in February 2005, and December 2007 and March 2010 measurements suggest it has actually worsened since then. With respect to other movements, it is unclear whether actual improvement or worsening has occurred. Extension measurements have ranged from less than 5 degrees to normal, and lateral flexion varied from 10 degrees to normal. Rotation was generally normal, but most recently left rotation was limited to 15 degrees by pain. The Board acknowledges that it is unclear whether the Veteran ever met the schedular criteria for a 40 percent rating; however, that question is not before the Board. Rather, the Board must address whether the reduction from 40 to 20 percent was proper. The evidence does not show an actual improvement in the Veteran's lumbar osteoarthritis and DDD of thoracic spine, resulting in an improvement in his ability to function under the ordinary conditions of life and work. Reexamination of the thoracolumbar spine did not disclose improvement of its disability. Indeed, it actually appears to have worsened from March 2004 to July 2007. Post-reduction evidence fails to demonstrate actual improvement, and suggests the possibility of further deterioration. After March 2004, two VA examiners diagnosed the low back condition as having progressed to a more serious condition and at least one VA physician described the Veteran's symptoms as worsening. Further, the Veteran himself has repeatedly asserted that his condition has worsened over time. Based on the foregoing, the Board finds that the reduction of the schedular disability rating from 40 percent to 20 percent for lumbar osteoarthritis and DDD of thoracic spine, effective March 1, 2008, was not proper based on the evidence. ORDER Entitlement to restoration of a 40 percent rating for lumbar osteoarthritis and degenerative disc disease of thoracic spine, effective March 1, 2008, is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs