Citation Nr: 1325020 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-06 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to restoration of a 60 percent disability rating for service-connected status post L4-L5 microlaminectomy and microdiscectomy, to include the question of the propriety of the reduction of the disability rating to 20 percent, effective July 1, 2009. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 1966 to November 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT At the time of the reduction from 60 percent to 20 percent, there had been no actual improvement in the Veteran's lumbar spine disability. CONCLUSION OF LAW The rating for status post L4-L5 microlaminectomy and microdiscectomy was improperly reduced from 60 to 20 percent, and the criteria for restoration of a 60 percent evaluation for the disability have been met from July 1, 2009. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.321, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION There is no question that a disability may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.105 apply to rating reductions. 38 C.F.R. § 3.105(e) requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level. If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced 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. Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 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). The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements for rating reductions. The proper procedure was followed for effectuating a reduction in this matter. Turning to the merits of the rating reduction, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). These provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. Where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). In the present case, the Veteran's 60 percent disability rating, which was reduced to 20 percent in the April 2009 rating decision on appeal, had been in effect for more than five years. As a result, the requirements under 38 C.F.R. § 3.344(a) apply to this case. Specifically, the record must be reviewed to ascertain whether there is evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations. Id. In addition, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Moreover, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show that the disability has worsened. 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. Cf. Dofflemyer, 2 Vet. App. at 281-282. The question of whether a disability has improved involves consideration of the applicable rating criteria. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, 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) provides that, in exceptional cases, an examiner may state that because of age, body habitus, 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 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 DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated 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. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS 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 disability rating for IVDS 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, service connection for status post L4-L5 microlaminectomy and microdiscectomy was granted in an August 2003 rating decision. A 60 percent disability rating was assigned, effective from April 7, 2003. The disability at that time was evaluated under Diagnostic Code 5293, as in effect from September 23, 2002, through September 25, 2003. Under Diagnostic Code 5293, a 60 percent disability rating was assigned where the evidence revealed incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The current General Rating Formula for Diseases and Injuries of the Spine, described above, was made effective September 26, 2003, and it was the current criteria that the RO used in the April 2009 rating decision that is the subject of this appeal. The initial rating was based primarily on the results of an April 2003 VA examination, which showed lumbar flexion to 40 degrees, extension to 20 degrees, left lateral bending to 20 degrees, right lateral bending to 10 degrees, and bilateral rotation to 35 degrees, all with increased pain. The VA examiner also assessed major additional lumbar functional impairment of 40 degrees flexion, 20 degrees extension, 10 degrees right lateral bending, and 28 degrees left lateral bending on the basis of global painful motion, pain with use, and limited endurance. In addition, with bedridden flare-ups, as the Veteran described, he had essentially temporary total lumbar functional loss. The Veteran was afforded another VA examination in October 2008. The VA examiner reviewed the claims file. The Veteran reported that, since the last VA examination, he had not had any surgery for his back or inpatient hospitalization. He stated that he took Motrin every four hours daily for pain, as well as Oxycodone as needed, on average two times per week. He reported that he had to quit his job as a courier for the U.S. Post Office in 2003 because he had trouble with his back and could not perform the job. He stated that his back pain was more or less continuous on a daily basis. He denied any incapacitating episodes. He said he could stand for 5 to 10 minutes, sit on a good chair for about 20 minutes, walk a half a block, and lift a maximum of 20 pounds. On physical examination in October 2008, forward flexion was to 68 degrees, right lateral bending was to 25 degrees, left lateral bending was to 20 degrees, extension was to 20 degrees, left rotation was to 20 degrees, and right rotation was to 25 degrees. He had pain with all motions. Following three repetitions, the Veteran had increased pain with decreased flexion to 48 degrees. The VA examiner stated he would add an additional 20 degrees loss of flexion mainly due to pain. Based on the results of the October 2008 VA examination, the RO proposed to reduce the disability rating for the lumbar spine to 20 percent. This proposal was made in a January 2009 rating decision. In the April 2009 rating decision that is the subject of this appeal, the RO implemented the reduction to 20 percent, effective from July 1, 2009. After a review of the all of the lay and medical evidence in this case, the Board finds that reduction of the disability rating for the lumbar spine from 60 percent to 20 percent was not proper, and a restoration of the 60 percent disability rating is warranted. Namely, a review of all of the evidence does not reveal that an improvement in the disability had actually occurred at the time of the reduction. While the range of motion findings, and particularly flexion, were improved in October 2008, a review of the October 2008 report does not support the conclusion that this was a material or sustained improvement in the underlying disability, or that the improvement would be maintained under the ordinary conditions of life. Notably, the examiner noted that, after repetition, the Veteran's flexion decreased to 48 degrees, and that pain may cause an additional 20 degrees of loss of flexion, thus limiting flexion even further to 28 degrees. This certainly does not demonstrate an improvement in the Veteran's lumbar spine disability, much less make certain that improvement would be maintained under ordinary conditions of life. The Veteran submitted written arguments in response to the rating reduction. He stated that he had to quit his job in 2003, at the advice of his physician, because the standing, walking, bending, and lifting involved was incapacitating him to the point where he would eventually lose all mobility. He further avers that he is less symptomatic since 2003 at times because he limits his activities to less than that of a normal person. For instance, he stated that if he tries to walk any distance or lift more than 20 pounds, his symptoms worsened and he had to rest his back for days in order to relieve the irritation the activity caused. The Veteran is competent to describe his symptoms, and his account further undermines the determination that his disability had actually improved at the time the reduction was made and that there was an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Further, as noted above, when a disability rating has been in place for at least five years, as is the case here, a reduction may not be based on the results of a single examination. See Brown. The assertion that the criteria for a 20 percent disability evaluation may be more appropriate to the Veteran's symptoms under the current spine regulations is irrelevant in the context of a reduced rating. As the evidence does not show that there has been actual improvement in the Veteran's lumbar spine disability, the Board finds that restoration of the 60 percent disability rating for the lumbar spine disability is warranted. This finding does not suggest that the Veteran's back will always be found to be 60 percent disabling. Further investigation of the back problem may be warranted, including a new examination and additional information from the Postal Service regarding any workers compensation claim the Veteran has filed with that organization. The Board cannot, in this case, obtain additional medical information to correct a rating reduction that is flawed (essentially obtaining medical evidence in order to deny a claim to justify the actions of the RO). At this time, based on this evidence, the 60 percent evaluation stands. A review of the evidence finds no basis to award the Veteran a higher evaluation for this disability as the most recent examination would provide highly probative evidence against this claim. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the full grant of benefits sought on appeal, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). ORDER Restoration of the Veteran's 60 percent disability rating for service-connected status post L4-L5 microlaminectomy and microdiscectomy is granted, effective from the date of reduction, July 1, 2009, and subject to the pertinent regulatory criteria relating to the payment of monetary awards. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs