Citation Nr: 1318111 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 04-37 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether a rating reduction from 40 percent to 20 percent for the service-connected residuals of a T12 compression fracture with deformity and lumbar strain (hereinafter "thoracolumbar spine disability"), effective November 1, 2008, was proper. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to June 1971. This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a July 2008 rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Detroit, Michigan, which enacted a proposed reduction of the Veteran's service-connected thoracolumbar spine disability from 40 percent to 20 percent, effective November 1, 2008. Jurisdiction of his claim was eventually transferred to the Indianapolis, Indiana RO. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (hereinafter "VLJ") in March 2010. A transcript of this proceeding is of record. Although a VA Form 9, Appeal to Board of Veterans' Appeals was not received in connection with this appeal, it has been held that the filing of a substantive appeal is not jurisdictional. See Gomez v. Principi, 17 Vet. App. 369 (2003); Beryle v. Brown, VA Form 9, Appeal to Board of Veterans' Appeals, received in Vet. App. 24, 28 (1996). The Board has accepted the Veteran's hearing March 2010 testimony as a way to exercise jurisdiction over the issue on appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009). In June 2010 the Board, inter alia, denied the claim for restoration of a 40 percent disability rating for the thoracolumbar spine disability effective November 1, 2008. The Veteran appealed the June 2010 decision to the United States Court of Appeals for Veterans Claims (hereinafter "Court"). In an October 2011 Memorandum Decision, the Court vacated the Board's June 2010 decision, and remanded the matter to the Board for further adjudicative action, to include consideration and analysis of the Veteran's entitlement to referral for an extraschedular rating for his thoracolumbar spine disability. The case was returned to the Board following the Court's Memorandum Decision. In April 2012, the Board again, inter alia, denied the claim for restoration of a 40 percent disability rating for the thoracolumbar spine disability effective November 1, 2008. The claim was thereafter the subject of a July 2012 Joint Motion for Partial Remand (hereinafter "JMPR") and Order of the Court, for consideration of the applicability of the holding in Brown v. Brown, 5 Vet. App. 413, 421 (1993). The case has been returned to the Board following the Court Order. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence and no additional documents pertinent to the present appeal have been identified. FINDINGS OF FACT 1. In a May 2008 rating decision, the RO notified the Veteran of a proposed rating reduction in the evaluation for his service-connected thoracolumbar spine disability, from 40 percent to 20 percent. The July 2008 rating decision on appeal enacted the proposed reduction of the evaluation for the service-connected thoracolumbar spine disability, effective November 1, 2008, the first of the month after 60 days notification of the decision. 2. The December 2006 and May 2008 VA examinations upon which the reduction was based were as full and complete as previous examinations. However, contemporaneous VA treatment records, Social Security Administration (hereinafter "SSA") records, lay evidence, and subsequent VA examinations of record have not demonstrated sustained, material improvement in the Veteran's thoracolumbar spine disability that is reasonably certain to continue and be maintained under the ordinary conditions of life. 3. The reduction from 40 percent to 20 percent for the thoracolumbar spine disability was improper. CONCLUSION OF LAW The criteria for restoration of a 40 percent disability rating for the service-connected thoracolumbar spine disability, effective November 1, 2008, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.71a, Diagnostic Codes (hereinafter "Diagnostic Codes" or "DCs") 5235 to 5243 (2012); Brown v. Brown, 5 Vet. App. 413 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (hereinafter "VCAA"), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VCAA provisions are not applicable to reduction cases found in 38 C.F.R. § 3.105 (2012), because this regulation contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002). Accordingly, VCAA provisions are not applicable in this matter. However, even assuming there was an error in satisfying any such notice requirements, any such error would be harmless given the fully favorable determination being made by the Board discussed hereinbelow. The Merits of the Claim A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155 (West 2002). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2012); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. The procedural framework set forth in 38 C.F.R. § 3.105(e) governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award 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 action expires. 38 C.F.R. § 3.105(e). In this case, the Veteran does not contend, and the record does not reflect, noncompliance with the procedural requirements for rating reductions. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections. 38 C.F.R. § 3.344(a)(b) (2012). This regulation provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are applicable for ratings which have continued for long periods, five years or more, at the same level, and that they do not apply to disabilities which have not become stabilized and are likely to improve. Similar protections are afforded to veterans who have been awarded a total rating based on unemployability. 38 C.F.R. § 3.343 (2012). Under these criteria regarding reductions, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a),(b) (2012); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens, 7 Vet. App. 320, 325 (1995). However, the 40 percent disability rating for the thoracolumbar spine disability was in effect for less than 5 years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and 38 C.F.R. § 3.344(b) are not applicable. 38 C.F.R. § 3.344(c) (2012). Thus, an examination disclosing improvement will warrant reduction in the rating. 38 C.F.R. § 3.344(c) (2012). The remaining question is whether an examination had shown an improvement warranting reduction in the rating. It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. Also, in adjudicating claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of a witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. The Board must also assess the credibility, and therefore the probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (hereinafter "Rating Schedule"), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. By way of background, the Veteran was granted service connection for a compression fracture of T12 with lumbar strain in a May 1972 rating decision, and a 10 percent disability evaluation was assigned under 38 C.F.R. § 4.71a, DC 5285(and implicitly 5292), the codes for rating the residuals of a fractured vertebra and for limitation of motion of the lumbar spine (1972-2003), effective June 23, 1971. In September 1990, the RO granted an increased evaluation for the thoracolumbar spine disability to 20 percent, effective January 5, 1992, under 38 C.F.R. § 4.71a, DC 5285 (and implicitly 5292), based on evidence of pain on motion and deformity of the T12 vertebral body. In August 2003, the Veteran filed a claim for an increased rating. In September 2004, the RO granted an increased evaluation for the thoracolumbar spine disability to 40 percent, effective September 26, 2003, under 38 C.F.R. § 4.71a, DC 5235 (vertebral fracture or dislocation), based on the change in the rating criteria for evaluating the back. The September 2004 rating decision reflects a finding that the Veteran's thoracolumbar spine disability met the criteria for entitlement to a 40 percent evaluation under DC 5235 which in turn is based on the General Rating Formula for Diseases and Injuries of the Spine and which requires, in pertinent part, either forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. At that time, the RO based the rating on evidence of decreased range of motion, pain associated with his back disability, functional limitations, and the Veteran's report of episodes of incapacitation. The RO also noted at the time that while the Veteran reported that once a month he had severe pain which required bed rest for 3 to 4 days, there was no evidence that this bed rest was prescribed by a Veteran. In the May 2008 rating decision in which the RO proposed to reduce the Veteran's thoracolumbar spine disability rating, the RO recognized that since the Veteran's original evaluation there were changes in the way spine disabilities are evaluated. The RO noted that changes in evaluation criteria could not be used as grounds for reduction unless there was medical evidence that established that the disability to be evaluated had actually improved. The RO noted that there was no evidence of improvement to the Veteran's thoracolumbar spine since his initial evaluation, and observed that the 20 percent evaluation was protected under the old criteria for DC 5285 for vertebral fracture with deformity. The RO indicated that in order to warrant an increased evaluation, the Veteran had to meet the spine criteria that went into effect on September 26, 2003. The RO acknowledged that the September 2004 rating decision, which increased the evaluation for the thoracolumbar spine disability to 40 percent under the new criteria based on a VA examination performed in August 2004, which indicated that the Veteran reported a history of incapacitating episodes. The RO acknowledged that there was no medical evidence at that time showing physician prescribed incapacitation; however, for rating purposes, an incapacitating episode under DC 5243 is a period of acute signs and symptoms due to intervertebral disc syndrome (hereinafter "IVDS") that requires bed rest prescribed by a physician and treatment by a physician. The RO noted that the medical evidence since the August 2004 examination did not include any physician prescribed periods of incapacitation; hence, the criteria for entitlement to compensation under DC 5243 were not met. The RO cited to a December 2006 VA spine examination and a May 2008 VA general examination, in which the Veteran's spine disability was not observed to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, with physician prescribed bed rest and treatment. In the July 2008 decision, the RO also generally discussed the December 2006 and May 2008 VA examinations and noted that a 40 percent evaluation was not warranted for the service-connected thoracolumbar spine disability, because the Veteran's thoracolumbar spine disability was not manifested by unfavorable ankylosis of the entire cervical spine; or, by forward flexion of the thoracolumbar spine 30 degrees or less; or, by favorable ankylosis of the entire thoracolumbar spine; or, by incapacitating episodes of IVDS having a total duration of at least one week but less than 2 weeks during the past 12 months requiring physician prescribed bed rest and treatment by a physician. However, the RO did find the 20 percent evaluation was protected under the historic rating criteria, and because the evidence showed vertebral fracture with deformity. As noted, the 20 percent evaluation was assigned, effective November 1, 2008, the first of the month after 60 days notification of the decision. Under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, 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 is warranted for 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. A 30 percent evaluation is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for 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. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code; Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 combined range of motion of the thoracolumbar spine is 240 degrees. 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. Note (3): In exceptional cases, an examiner may state that because of age, body habits, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation, 5236 Sacroiliac injury and weakness, 5237 Lumbosacral or cervical strain, 5238 Spinal stenosis, 5239 Spondylolisthesis or segmental instability, 5240 Ankylosing spondylitis, 5241 Spinal fusion, 5242, Degenerative arthritis of the spine (see also diagnostic code 5003). See 38 C.F.R. § 4.71a, DCs 5235 to 5242 (2012). Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. A 10 percent evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. See 38 C.F.R. § 4.71a, DC 5243 (2012). Normal ranges of motion of the thoracolumbar spine are to 30 degrees in extension, to 90 degrees in flexion, to 30 degrees in lateral flexion, and to 30 degrees in rotation. 38 C.F.R. § 4.71, Plate V (2012). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). When an evaluation of a disability is based on limitation of motion, VA must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. VA's Office of General Counsel has held that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). As noted, there is a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability, and that such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Schafrath, 1 Vet. App. 589, 594 (1991); Faust v. West, 13 Vet. App. 342, 350 (2000). Hence, pursuant to the Court's holdings in holdings in Schafrath, Faust and Brown, the Board will consider the entire history of the Veteran's disability and will determine whether or not an improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Although the VA treatment records throughout the pertinent time period were apparently reviewed, the rating reduction on appeal appears to have been almost exclusively based on the December 2006 and May 2008 VA examination reports, which were construed as showing a material improvement in the Veteran's thoracolumbar spine disability. However, the Veteran's and his friends' lay statements describing the impact of his thoracolumbar spine disability on his ability to remain employed were not addressed, nor were records from the SSA, which reflect a finding by SSA that the Veteran's thoracolumbar spine disability contributed to his inability to remain gainfully employed. Moreover, as the May 2008 rating decision pointed out, the September 2004 rating decision which increased the evaluation for the thoracolumbar spine disability to 40 percent under the new criteria was based on the findings of a August 2004 VA examination report, which did not indicate findings of 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; or, IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, which required physician prescribed bed rest and treatment by a physician. Despite the fact that the Veteran did not appear to specifically meet any of the diagnostic criteria, which would entitle him to a 40 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine, the RO chose to assign a 40 percent evaluation, effective September 26, 2003. The Board does not find that the record demonstrated that the Veteran's thoracolumbar spine disability had an improvement in the disability that actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work at the time of the rating reduction. In fact, the Board finds that the record shows the Veteran's thoracolumbar spine disability, at least, maintained the same level of severity throughout the appeal period, and, at most, increased in severity, with respect to the Veteran's ability to function. During the August 2004 VA examination the Veteran complained of pain, which increased with walking, bending and lifting, generally at a level of 5 on a scale from 1 to 10. He described flare-ups with repetitive movement, raising his level of pain to 8 on a scale of 1 to 10. The Veteran denied problems with bowel movements and with bladder function, and had no numbness. He also denied using any assistive devices or taking any medication for his spine. He reported an employment history of working as a welder, but noted that he quit his job in 2003 due to physical problems. Physical examination results included range of motion testing with forward flexion limited to 90 degrees, with pain starting at 70 degrees; extension to 25 degrees; lateral bending to 25 degrees; rotation to 25 degrees; and excess fatigability against moderate resistance of the lumbar spine. The examiner observed pain in the lumbar spine with right leg straight-leg raising of 15 degrees, and that the Veteran had sciatica. The examiner noted the Veteran's pain was noticeable by facial expression, but there was decreased sensitivity in his lumbar spine and his deep tendon reflexes were 2 out of 6. An X-ray study performed in February 2004 revealed mild scoliosis, degenerative changes of L5 to S1, and anterior compression deformity, posttraumatic after compression fracture. The Veteran was diagnosed with degenerative disease of the lumbosacral spine and with anterior compression deformity after compression fracture in the military. The examiner opined that the Veteran had significant functional impairment which interfered with his ability to work and perform daily activities. The examiner indicated the Veteran was not able to perform his job as a welder, and needed a light job, preferably a desk job. The examiner observed there was some worsening during the previous 12 months, and that once a month, the Veteran had severe pain that required bed rest for 3 to 4 days. The December 2006 VA spine examination shows the Veteran reported symptoms of chronic, constant back ache with frequent flare-ups, which caused him to remain in bed to allow the area time to heal and rest. He noted that his flare-ups occurred at a rate of at least one a month that was severe enough to render him bed-bound, and at least 3 to 4 monthly episodes where he experienced shock and sudden pain down into his leg. He indicated that his prescribed medications for pain did little to help, though they caused some relief. The examiner observed that the Veteran was unemployed but assisted in the home where he lived and handed out medication to the other residents. The examiner indicated that, as far as precipitating and alleviating factors, the Veteran reported that if he twisted a certain way or was standing for prolonged periods of time, he would get an increase in the pain and was more likely to have one of his flare-ups that caused him to be bed-bound. The Veteran denied using a cane or any type of assistive device, but did at one point wear a back brace, which he no longer wore. He reported that he did not have any falls, but occasionally lost his balance and felt unsteady while going up and down ladders and going up and down stairs. The Veteran denied undergoing any surgeries or other procedures such as injections to help with the pain, although he indicated that he was prescribed pharmaceuticals for his pain on a limited basis. He indicated that he occasionally experienced muscle spasms, but that they primarily occurred when he experienced an episode that made him completely bed-bound. The examiner noted the Veteran's ability to continue with the activities of daily living, such as bathing, self-grooming, eating, toileting, and dressing were unaffected; however, he did not drive. Physical examination of the lumbar spine included observations of some tenderness to palpation over the lumbar area, in the area of L1 to L2. The examiner observed some slight muscle spasm in the paraspinal muscles bilaterally. The Veteran's range of motion testing revealed forward flexion limited to 80 degrees with significant pain when pressed to go further; extension limited to 25 degrees; right and left lateral flexion appearing normal to 30 degrees; and right and left lateral rotation appearing normal to 30 degrees. Also, deep tendon reflexes appeared normal. Diagnostic studies performed, including X-ray of the lumbar and thoracic spine, showed mild scoliosis with moderate degenerative changes from L5 to S1; mild degenerative changes of the remainder of the lumbar spine; and evidence of compression fracture compatible with posttraumatic changes. The Veteran was diagnosed with T12 compression fracture with approximately twelve incapacitating episodes per year, which did not affect employment because the Veteran was unemployed, but which did make him bed-bound and decrease his routine activities. He was also diagnosed with degenerative spinal disease with the T12 compression fracture causing approximately twelve incapacitating episodes a year where the Veteran was bed-bound, which did not directly affect employment because the Veteran was unemployed, but which did affect his ability to perform recreational or routine activities, including assisting with other residents at his current home. The May 2008 VA general examination shows the Veteran reported that he had visited a few chiropractors for treatment of his back, but most would not treat him due to his history of T12 fracture. He denied undergoing surgery to his back, but reported symptoms of sharp/dull pain radiating down the right leg to the foot occurring twice a day, 4 to 5 times a week, especially with bending, twisting and certain motions. He noted that standing was limited to approximately 15 minutes, and that he did not have the ability to work due to pain. In this regard, he indicated that he could not perform heavy work any longer, and that his previous employers got upset at his inability to move quickly. He also reported that he was uneducated, which limited the types of jobs for which he could apply, and that he had been a welder for most of his life and had obtained an electrical associates degree but could not perform the physical work involved. The examiner noted 12 episodes of incapacitation in 2006, which the Veteran could not recall. However, the Veteran described episodes of flare-ups with back pain of 10, on a scale of 1 to 10, which made him unable to stoop or bend, in 2007. He indicated that these flare-ups occurred 4 to 5 times and lasted 2 to 3 days; however, there was no doctor prescribed bed rest at that time. The Veteran reported that he self-treated by elevating his legs, resting, and taking his prescribed medications. He noted that after 2 to 3 days he was able to get back to his average daily pain of 7, on a scale of 1 to 10. The examiner observed the Veteran's symptoms had become progressively worse, although he had fair response to his prescribed medications. The examiner observed that the Veteran had a history of urinary frequency and urgency, as well as nocturia. He denied a history of fecal incontinence. The examiner noted there was no flare-up of joint disease or muscle disease, and there was no finding of IVDS; however, there were symptoms of stiffness, limited motion, back or neck pain, radiation of pain and leg pain related to the thoracolumbar spine. There were also symptoms of spinal spasms and flare-ups of severe spinal disease observed, with precipitating factors of certain movements and bending, occurring every 3 to 4 months, and lasting for 1 to 2 days. The Veteran reported that he experienced 4 to 5 episodes in 2007, during which he was unable to bend due to pain and spasm. He had to rest, elevate his legs, be careful with his movements and rest, and noted relief of symptoms after 2 to 3 days. He indicated that he performed little more than the necessary activities of daily living during these periods. On physical examination, the examiner observed that the Veteran had abnormalities of the spinal muscle, such as guarding, spasm and tenderness, to include tenderness of the spinal process at T11 to T12 area; however, no paraspinal tenderness or spasm was appreciated, there was no evidence of spinal ankylosis and straight leg raise testing was negative. The examiner noted the Veteran had fracture of the T12 vertebral body. On range of motion testing, the Veteran's flexion was limited to 85 degrees without pain; he had hyperextension to 25 degrees with pain from 20 degrees to 25 degrees; right and lateral flexion were to 35 degrees without pain; right lateral rotation was to 50 degrees without pain; left lateral rotation was to 48 degrees without pain; and there was no change in passive range of motion. There was pain on motion, but Waddells was observed to be negative. Diagnostic testing, including thoracic spine and lumbar spine views, revealed impressions of a mild scoliotic curvature of the upper thoracic spine with compression deformity of T12 and mild compression of the superior endplate of T11 of uncertain age; degenerative disc disease at T11 to T12; mild degenerative changes of the lumbar spine with scoliotic curvature and compression deformity of T12 of uncertain age; atherosclerotic calcification in the abdominal aorta; and diffuse demineralization noted. An electromyography (hereinafter "EMG") study revealed findings of no evidence for lumbar radiculopathy/sciatica or thoracic radiculopathy. The examiner opined that the Veteran's lower back pain was most likely secondary to his T12 compression fracture and nearby muscular spasms. However, it was noted that the machine was not able to detect a purely sensory radiculopathy. The examiner noted an employment history of working as a welder, but that the Veteran had retired in 2003 due to back problems, kidney problems, and chronic obstructive pulmonary disease, for which he was in receipt of SSA benefits since approximately 2003. The examiner diagnosed the Veteran with radiographic evidence of mild degenerative changes of the thoracic spine, with compression deformity of T12 with mild compression of T11 of uncertain age; and degenerative changes of the lumbar spine with mild scoliotic curvature and diffuse demineralization with decreased range of motion. The examiner noted there was no evidence of radiculopathy based on EMG results. The problem associated with the diagnosis was described as the residuals of T12 compression fracture with deformity and lumbar strain. The examiner observed the Veteran was unemployed, and noted there were effects of the spine disability on the Veteran's usual daily activities, including mild effect on chores; and moderate effect on sports and exercise. There was no effect on shopping, recreation, traveling, feeding, bathing, dressing, grooming or driving noted. The examiner also indicated that the Veteran could perform a sedentary to moderate activity that limited lifting and bending of the spine. While the Board finds these examination reports generally address the Veteran's level of impairment of the thoracolumbar spine disability to the same extent as was done on previous examinations, and shows the Veteran did not report any physician prescribed incapacitating episodes of IVDS, these examination reports also reveal the Veteran's thoracolumbar spine disability had a significant effect on his occupation, ability to move, and ability to stand independently without fear of falling. They also show that the Veteran reported multiple instances of incapacitating episodes requiring bed rest. Also, although the examiners obtained the Veteran's employment history and addressed his ability to perform the activities of daily living, the examiners did not integrate these pieces of information into the analysis of the overall impact the thoracolumbar spine disability had on the Veteran's functionality. In statements received in April 2009, the Veteran and two of his friends provided information regarding the severity of his thoracolumbar spine disability, and observations of how the disability impacted his employability. Specifically, the Veteran indicated that the pain generated from his back impaired the right side of his body through his leg. He noted that he had worked as a welder, and had been trained as an electrician, but could not work off of ladders and scaffolding due to his pain. He also reported that he was learning disabled, which made obtaining a desk job difficult. His two friends, who had known him for 5 and 6 years respectively, observed that he was in a great deal of pain due to his thoracolumbar spine disability, and that his pain rendered him unable to keep a job. A VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in July 2010, reflects the Veteran reported that his disability first affected his full time employment in 1980, that he last worked full time in 2003, and that he had to stop working due to his sciatica and back disability. He also listed employment as a maintenance welder at "Nicro Finishing" in 2003, and as a temporary laborer at "Personnel Power," "Salvation Army" and "Borg-Warner Services" in 1997. He indicated that his highest level of education completed was 2 years of college after obtaining his General Educational Development (hereinafter "GED") diploma. He denied having any other education or training before he became too disabled to work. During his hearing testimony in March 2010, the Veteran reported that his back has progressively gotten worse over the years, and that his symptoms of severe, shooting pain made it difficult to walk more than 1 block or negotiate stairs. He indicated that at times he could bend over to tie his shoes, but that if he sat in a chair for more than 1 hour he had to move around and stand or he would experience pain. He denied having any problems with sleep, but that he felt pain in his low back when driving or lifting anything heavy. The Veteran indicated that he only felt relief when he did not move at all, or if he leaned his body over a chair. He noted that during his last conversation that he had with his doctor about his back pain, his doctor told him to take his medications, and to limit his physical work so that he did not reinjure his back. The Veteran also reported that he had recently begun physical therapy, but that he had attempted to go to see a physical therapist one year prior. The Veteran denied undergoing any injections to his spine for the pain, but noted that his doctor wanted him to undergo an MRI scan before he is sent to the pain clinic for injection therapy. The Veteran testified that his back pain only intensified over the previous 3 to 4 years, but denied a decrease in his range of motion or symptoms of muscle spasms in his back. He also denied having any doctor prescribed bed rest in the past few years, but described periods of having to stay in bed for 2 to 3 days to recover from his back pain. He noted that he was not in bed at all times during those periods. A statement from the Salvation Army, dated in October 2010, shows that the Veteran had been employed by the Salvation Army as a "baler" assigned to the dock, from May 1996 to April 1997, and that he voluntarily left employment. A VA Form 4192, Request for Employment Information in Connection with Claim for Benefits, dated in February 2011, reflects that the Veteran worked for Nicro Finishing as a maintenance worker in 2003, but his employment with the company was terminated due to his bad back. In October 2010 and July 2011, the Veteran underwent more recent VA spine examinations, which revealed reports of progressive worsening of his spine disability, which required medications and a transcutaneous electrical nerve stimulation (hereinafter "TENS") unit. The Veteran continued to report symptoms of urinary frequency, urgency and nocturia; unsteadiness; paresthesias in the right leg; stiffness, weakness, fatigue and decreased motion in the lower back; stabbing, cramping, sharp pain with sitting straight, bending, walking, standing and twisting; radiation of pain; and limitation on walking where the Veteran is unable to walk more than a few yards. The Veteran also reported experiencing severe flare-ups of low back pain every 2 to 3 weeks, which lasted for hours, and which were precipitated by movement and twisting. The Veteran reported that he rested for short periods of time until his pain passed. The July 2011 examiner noted that the Veteran had no incapacitating episodes of spine disease, gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or ankylosis. However, he did have abnormal, "flexed," gait; flexion limited to 60 degrees; extension limited to 10 degrees; left lateral flexion limited to 15 degrees; right lateral flexion limited to 10 degrees; left lateral rotation limited to 30 degrees and right lateral rotation limited to 30 degrees, with objective evidence of pain on active ranges of motion, and objective evidence of pain following repetitive motion. The examiner also observed that the Veteran was tender at T12 to L2 with bilateral paravertebral spasm, and positive straight leg raising on the right at 60 degrees. MRI study performed in March 2010 revealed an impression of mild central canal stenosis at the L1 to L2 and L2 to L3 levels; multilevel neural foraminal narrowing, worse bilaterally at L5 to S1 level; nonacute anterior wedge deformities of the T11 and T12 vertebral bodies; and levocurvature of the lumbar spine. The Veteran again reported that he had been unemployed since 2003 due to his back, and was in receipt of SSA benefits. The examiner noted the Veteran's thoracolumbar spine disability effected his usual occupation by increasing absenteeism due to his back pain. The examiner also indicated that the thoracolumbar spine disability impacted the Veteran's occupational activities by decreasing mobility; causing problems with lifting and carrying; causing a lack of stamina; causing weakness or fatigue; causing decreased strength; and causing lower extremity pain. The effects of the disability on usual daily activities included limiting his physical activity at home, needing to lean forward to do dishes, as well as to complete most household chores, and needing to rest often. As noted, where VA contemplates a rating reduction, "not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 416-19 (1993). The Board finds the contemporaneous VA treatment records, SSA records, lay evidence, and subsequent VA examination of record have not demonstrated sustained, material improvement in the Veteran's thoracolumbar spine disability that is reasonably certain to continue and be maintained under the ordinary conditions of life. In this regard, VA treatment records generally show complaints of pain in the spine, and symptoms which were, at times, unaffected by the prescribed pain medications. They also show that the Veteran has more recently undergone physical therapy to treat his spine. Also, the SSA records and VA examination reports, collectively, show that the Veteran's thoracolumbar spine symptomatology had not shown material improvement in the Veteran's ability to function under ordinary conditions of life and work at the time of the reduction or thereafter. In this regard, these records show continued complaint of a severe degree of pain with instability in the thoracolumbar spine, which has required self-administered bed rest and immobility, and which has caused significant functional impairment that has interfered with his ability to work and perform daily activities. Moreover, the Veteran submitted various statements and testimony in support of his claim, which are congruent with the medical evidence of record. These statements and testimony include observations from his friends and former employers, which show that his ability to remain employed was greatly impacted by his spine symptomatology. The Veteran, his friends and his former employers are competent to report the nature and extent of his observable lumbar spine symptoms, such as pain and limited mobility, to include describing his overall functional loss. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Based on the above, the Board finds that the clinical and lay record at the time of the reduction is not sufficient to establish that sustained, material improvement in the Veteran's thoracolumbar spine disability is reasonably certain to continue and be maintained under the ordinary conditions of life. Therefore, restoration of a 40 percent rating for the thoracolumbar spine disability is warranted. Brown v. Brown, 5 Vet. App. 413; 38 C.F.R. §§ 4.1, 4.2, 4.13. (Continued on the Next Page) ORDER Restoration of a 40 percent evaluation for the service-connected thoracolumbar spine disability, effective November 1, 2008, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs