Citation Nr: 1315733 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-34 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether a rating reduction from 40 percent to 20 percent for a lumbar spine disability was warranted from January 1, 2008 to November 9, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active service from November 1978 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, in which the RO proposed to reduce the disability ratings assigned for the Veteran's service-connected lumbar spine disability from 40 percent to 20 percent. The RO implemented these rating reductions in an October 2007 rating decision, assigning a 20 percent rating for the Veteran's service-connected lumbar spine disability effective January 1, 2008. In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. At the hearing, the Veteran indicated that a restoration of his 40 percent rating for his lumbar spine would satisfy his appeal and that he was not seeking a rating in excess of 40 percent. Therefore the Board will limit its decision to the issue of the propriety of the reduction alone. See AB v. Brown, 6 Vet. App. 35 (1993). In January 2013, the Veteran filed a claim for service connection for migraines. The issue of service connection for migraine headaches has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's lumbar spine disability did not improve between January 1, 2008 and November 9, 2011. CONCLUSIONS OF LAW The criteria for reduction of a rating from 40 percent to 20 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Because the Veteran expressly limited his appeal to the issue of restoration of a 40 percent rating, and the 40 percent rating is restored for the whole period on appeal in this decision, the Board's decision represents a complete grant of the benefit sought and there is no need to discussion the application of the VCAA. See AB v. Brown, 6 Vet. App. 35 (1993) (holding that a Veteran is presumed to be seeking the highest rating available unless he specifically limits his claim). Restoration of a 40 Percent Rating for Degenerative Joint Disease of the Lumbar Spine The Veteran contends that the reduction from 40 percent to 20 percent effective January 1, 2008 to November 9, 2011, for degenerative joint disease, lumbar spine (lumbar spine disability) was improper. He specifically contends that the medical evidence does not show that his service-connected lumbar spine disability had improved. Instead, he contends that the lumbar spine disability has not improved and the 40 percent ratings should be restored. With a rating reduction, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e); 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). For the reasons set forth below, the Board finds that there has been full compliance with the procedures of 38 C.F.R. § 3.105(e). The provisions of 38 C.F.R. § 3.105(e) allow for a rating reduction 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 within thirty days of notification. 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). Here, the RO provided the required notification of a proposed reduction in a rating decision promulgated in July 2007. The Veteran was afforded the opportunity to have a hearing but did not request a hearing within 30 days. The Veteran was given 60 days to present additional argument and evidence. A rating reduction from 40 percent to 20 percent for the lumbar spine disability was effectuated by a rating decision in October 2007, with an effective date of January 1, 2008, more than 60 days after the last day of the month of the rating decision. Therefore, the procedural due process requirements of 38 C.F.R. § 3.105(e) were met. As to the reduction itself, 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 disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). 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, 172 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247, 250 (1992). In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120, 123-24 (2002). The burden of proof is upon VA. Brown v. Brown, 5 Vet. App. 413, 421 (1993). Not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the Veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342. VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show, for example, that a Veteran is capable of more than marginal employment. Faust v. West, 13 Vet. App. 342, 349-50 (2000). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the Veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability. Id. The examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201, 203 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Specific requirements for reducing a rating 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. The requirements of § 3.344(a) and (b), apply to ratings in effect for five years or more. 38 C.F.R. § 3.344(c). A review of the claims file shows that service connection currently was in effect for the lumbar spine disability, rated at 40 percent effective March 14, 2005, and at 20 percent disabling effective January 1, 2008. In other words, the 40 percent ratings for the Veteran's service-connected lumbar spine disability had not been in effect for 5 years of more. Therefore, any rating reduction for the Veteran's lumbar spine disability is not governed by 38 C.F.R. § 3.344. A disability rating is 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In this case, the RO issued a rating decision dated in August 1990 granting service connection for the Veteran's lumbar spine disability, awarding 0 percent, effective February 1990. The disability was rated at 10 percent, effective March 1990, and then increased again at 20 percent effective July 1999. Effective March 2005, the Veteran's lumbar spine disability was increased to 40 percent. As noted, the rating was reduced to 20 percent effective January 1, 2008. In a rating decision dated in July 2012, effective November 9, 2011, the RO again rated the Veteran's lumbar spine disability as 40 percent disabling. Thus, the issue before the Board is whether the reduction of the lumbar spine disability from 40 percent to 20 percent for the period of January 1, 2008 to November 9, 2011 was proper. A June 2005 rating decision first awarded a 40 percent rating for the lumbar spine disability. It was based upon a VA examination in May 2005. The Veteran reported his main problem was pain, which caused poor sleep at night. The pain, 7/10, varied between dull and sharp and was aggravated by movement, housework, or other activity. He could not walk more than a quarter of a mile before he experienced pain. Pain also occurs when he sits for long periods. The Veteran works as an accountant and has learned to vary his routine between sitting and moving. He makes sure he moves at least every two hours. The Veteran cannot sit in a car greater than 15 minutes. The examiner noted the Veteran was in obvious agony and moved slowly with a limp. The Veteran had a marked paraspinous muscle spasm in his lower back. The Veteran barely reached 40 degrees in forward flexion and 10 degrees in extension, both with pain. He had 15 degrees lateral flexion bilaterally, and 20 degrees rotational flexion bilaterally. The Veteran could not perform repeat testing for extension due to his pain. The examiner did not find any neurological abnormalities. In June 2007, the Veteran underwent a VA examination where the Veteran reported the disability had worsened over the past two years. He has stiffness all the time and weakness with lifting things. He has constant crushing, burning, aching, sharp pain, 9/10, but it is localized. The pain can be elicited by physical activity stress, and sitting too long. His back pain impacts driving and sitting, grocery shopping, and his greatest activity is riding the lawn mower and some house work. The examiner found no evidence of muscle spasms, tenderness, or ankylosis. The straight leg raises were negative. The forward flexion was 90 degrees, extension to 30 degrees, lateral flexion 30 degrees bilaterally, and rotational flexion 30 degrees bilaterally without additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. On the basis of the June 2007 VA examination, the RO proposed the reduction of the award for the lumbar spine from 40 percent to 20 percent in a July 2007 rating decision and implemented the reduction in an October 2007 ratings decision, In October 2007, a private MRI of the Veteran's back demonstrated a grade I lytic spondylolisthesis of L5 on S1 with greater hypertrophic changes on the right than the left. This involved the pars defect at L5. There was a central and left sided extruding disc herniation with cephalad dissection into the proximal of the left intervertebral nerve root canal with marked compression of the exiting left L5 nerve root aspect. A May 2007 bone scan that showed dextroscoliosis of the lumbar spine. In March 2008, the Veteran was evaluated by a private physician. The Veteran reported sharp stabbing, constant pain. His symptoms extended into his lower extremities, left greater than right. The Veteran had an antalgic gait and experienced tenderness to palpitation in the L4-S1 spinous area and both buttocks. Range of motion testing revealed forward flexion to 45 degrees with pain, extension to 15 degrees with pain and lateral flexion bilaterally to 10 degrees. The Veteran had minimal rotational flexion (described as torso rotation) with pain. The diagnosis as lower back pain with left leg pain and paresthesia. A March 2008 X-ray demonstrated a minimal grade I anterolisthesis of L5 and S1 without significant change in alignment with difference in position. There also was mild disc space narrowing of L5-S1. A March 2008 MRI, in comparison with the October 2007 study, demonstrated stable L5-S1 paracentral/forminal disc herniation with impingement upon the exiting L5 nerve root. There also was stable minimal grade I anterolisthesis of L5 and S1 secondary to bilateral spondylolysis with hypertrophic changes greater on the right side. In a VA examination occurring in November 2011, the Veteran reported pain, weakness, and stiffness in both his upper and lower back. He has fallen 6 times in the prior year that he attributed to his lumbar spine disability. The pain level ranges from 7/10 to 10/10. The pain worsens with activities such as walking, bending, lifting, sitting, playing with his grandchildren, shopping, or overhead work, which he avoids. When the pain increases, he stops and rests. The Veteran stated he has not noted any weakness or numbness in his feet although his pain at times radiates into his legs. Upon examination, the examiner noted the Veteran had an early need to stand and upon standing, he described the pain as increasing to 9.5/10 and there was grimacing. The Veteran was able to walk approximately 60 feet without using a cane but had a limp on the left side. There was tenderness in the midline and in the paraspinous muscles of the thoracic and lumbar spine. Flexion was limited to 30 degrees by pain and grimacing. Extension was limited to 0 degrees by pain and grimacing. Lateral flexion was limited to 10 degrees bilaterally with increased pain and grimacing. Rotational flexion was limited to 15 degrees to the right and the left with pain and grimacing. There was no change with repetition and the examiner did not see any signs of weakness, lack of endurance, or incoordination. The examiner also stated he found no evidence of radiculopathy or sciatica. The examiner, an orthopedic surgeon, described the Veteran's limitation as severe. The Veteran has submitted evidence that his disability had not improved between 2005 and June 2007. It had remained about the same since the 40 percent was awarded. The Veteran recalled that the June 2007 examination occurred while he was taking pain medication and his medical providers were also attempting to determine which sleep medication to prescribe for him. He has to use a heating pad for driving and his wife has to assist him getting out of bed. He then must take a hot shower to dress and function. Some days, he experiences leg pain and others he has no feeling in his legs upon wakening. The Veteran stated he cannot stand longer than 10 minutes or sit longer than 20 minutes. He cannot walk more than a block nor drive longer than 30-40 minutes. He cannot sit through a movie. The Veteran testified that he could not perform the same activities that he could perform the first time he had a 20 percent rating (July 1999 to March 2005). It was noted at the hearing that the Veteran was unable to sit for more than 10 minutes before he had to stand. The central question before the Board is whether the lumbar spine disability has improved. Although the RO considered the Veteran's condition to have improved by 2007 and also found the improvement sustained, as the Court instructed in Brown v. Brown, 5 Vet. App., 413, 420-421 (1993), not only must VA prove an improvement in the Veteran's disability has occurred, VA must also show that such improvement actually reflects an improvement in the Veteran's ability to function. Based on the foregoing medical evidence, the Board finds that the Veteran's lumbar spine disability has not improved his ability to function under the ordinary conditions of life and work since the Veteran was awarded a 40 percent rating. Specifically, the Veteran has described symptoms since 2005 of pain, stiffness, and weakness in certain activities such as lifting or carrying objects. Further, the Veteran's descriptions of his back problems in his life and in severity does not show material improvement. Instead, the symptoms cause him pain with prolonged standing, sitting, driving, and an inability to engage in other activities such as shopping, and, if anything, the Veteran reported that his back pain and functional limitations were worsening throughout the period from January 1, 2008 to November 9, 2011. At best, the Veteran's lumbar spine disability, as demonstrated by the radiological studies, is stable. The Board notes, however, that "stable" does not necessarily imply that the disorder has improved, and can instead mean that the disorder has not become worse. That appears to be the situation in the Veteran's case based upon the radiological studies and the Veteran's statements and testimony suggesting his disability has, if anything, worsened. Except for the range of motion testing in October 2007, none of the evidence actually showed improvement at the time of the decision which reduced the evaluation assigned the disability or for the total period of January 2008 to November 2011. The results of the October 2007 examination appear to be an aberration and have not been duplicated before or since either by VA or by private medical providers. Different examiners, at different times, will not describe the same disability in the same language, and features of a disability which must have persisted unchanged may be overlooked or a change for better or worse may not be accurately appreciated or described. 38 C.F.R. § 4.2. The Board, when examining the entire medical history before it, finds the evidence indicates the Veteran has not improved to the extent that a reduction to 20 percent is warranted for the lumbar spine disability from January 2008 to November 2011. Accordingly, the Board concludes that restoration is warranted for the 40 percent evaluation for the lumbar spine instability from January 1, 2008 through November 9, 2011. Total Disability Rating for Compensation Based on Individual Unemployability During the appeal period, the Veteran has not expressly raised and the record does not reasonably raise a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). The record reflects that at the time of filing his claims, and at all relevant times since, the Veteran has remained employed as an accountant. Therefore, in the circumstances of this case, the Board declines to take jurisdiction over a total disability rating claim. ORDER The 40 percent rating for a lumbar spine disability is restored, effective from January 1, 2008 through November 9, 2011, and to this extent the appeal is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs