Citation Nr: 1326569 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-04 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Propriety of the reduction (from 30 to 20 percent) in the rating for lumbar spine degenerative joint disease (DJD), effective October 9, 2008, and entitlement to a rating in excess of 20 percent for such disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1959 to June 1965. This appeal is before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for an increased rating, and instead reduced the rating for the lumbar spine DDD from 30 to 20 percent effective October 9, 2008. The matter of the rating for lumbar spine DJD subsequent to the reduction is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The reduction in the rating for DJD of the lumbar spine from 30 percent to 20 percent effective October 9, 2008 did not result in a reduction or discontinuance of compensation payments that were being made (both prior to, and following, the reduction the combined rating for the Veteran's service-connected disabilities was 60 percent); therefore, the notice provisions of the regulation governing compensation rating reductions do not apply. 2. The 30 percent rating for the Veteran's lumbar spine DJD was not in effect for 5 years, and the reduction of the rating to 20 percent, effective October 9, 2008, was based on an examination showing improvement (i.e., improved motion). CONCLUSION OF LAW The reduction of the rating for lumbar spine DJD from 30 percent to 20 percent effective October 9, 2008 did not involve a due process violation, and was proper. 38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Codes 5003, 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, the regulations governing reductions of evaluations for compensation contain their own notification and due process requirements (which are discussed in greater detail below). 38 C.F.R. § 3.105(e), (i). Therefore, the notice provisions of the VCAA do not apply in this matter. The reduction in the rating was based on an examination arranged by the RO. A review of the examination report found it to be adequate for rating purposes. The Veteran has not identified any outstanding evidence pertinent to the propriety of the reduction. The Board finds that VA has no further duty to assist the Veteran with respect to the question that is being decided. Factual Background At the outset, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board notes further that the propriety of the reduction by the December 2008 rating decision is a threshold matter that must be addressed first (as a finding of a violation of due process in the rating action that reduced the evaluation would nullify the reduction). The Veteran contends that the disability had not improved so as to warrant a reduction in the rating. Historically, a December 1983 rating decision granted the Veteran service connection for lumbar spine DJD, rated 10 percent, effective October 1, 1983, under Code 5003 (for degenerative arthritis); an October 2002 rating decision, increased the rating to 20 percent, effective in May 2002. The Veteran filed a claim for an increased rating for lumbar spine DJD in October 2006. On January 2007 examination, he reported pain, fatigue, decreased motion, stiffness, weakness, spasms, numbness, unsteadiness, and weakness of the leg or feet. Pain was described as acute, dull and moderate; lasting hours for days at a time. Flare-ups were described as severe, occurring weekly and lasting for hours, and were caused by lifting and twisting. On physical examination, there was no evidence of spasm, atrophy, guarding, or weakness. Tenderness and pain with motion were noted. The Veteran's posture and gait were normal. There was no ankylosis of the thoracolumbar spine. Range of motion studies showed flexion to 50 degrees, with pain at 40 degrees; extension was to 20 degrees, with pain at 10 degrees; left lateral flexion was to 20 degrees; right lateral flexion was to 20 degrees; left lateral rotation was to 20 degrees; and right lateral flexion was to 20 degrees. There was additional loss of motion on repetitive use: Flexion was only to 30 degrees; extension was to 0 degrees. A February 2007 rating decision increased the rating for lumbar spine DJD to 30 percent, effective January 26, 2007 (the date of the VA examination). The RO found that although the Veteran's condition most closely approximated the criteria for a 20 percent rating, a 30 percent rating could be assigned based on the additional loss of motion found on repetitive use during the VA examination. The Veteran filed another claim for an increased rating for lumbar spine DJD in July 2008, asserting he had additional loss of motion, severe radiating pain, muscle spasms, and loss of function. On October 9, 2008 VA examination, the Veteran stated he suffered from lower back pain which radiates to his legs, primarily on the left side, that occurs when lifting, pushing, driving, or with activity. He further stated that the pain is moderate to severe, and can last a few hours, and is sometimes associated with muscle spasms that last up to 3 to 4 days, and that he had stiffness and weakness in his back and legs. Flare-ups with extended physical activity, lasting a few hours up to 3 or 4 days were reported. The Veteran stated he could walk 20 minutes continuously, and did not use an ambulatory aid. On examination, it was noted that the Veteran's gait, posture, curvatures, and symmetry of the spine were all normal. There was no ankylosis of the thoracolumbar spine. Range of motion studies showed forward flexion to 52 degrees, with pain at 52 degrees; extension to 26 degrees, with pain at 26 degrees; left lateral flexion to 42 degrees, with pain at 42 degrees; right lateral flexion to 35 degrees, with pain at 35 degrees; left lateral rotation to 30 degrees, with pain at 30 degrees; and right lateral rotation to 40 degrees, with pain at 40 degrees. While painful motion was found, there was no evidence of fatigue, weakness, lack of endurance, incoordination, spasm, effusion, instability, tenderness, redness, heat, abnormal movement, or guarding of movement. No additional loss of motion was reported on repetitive testing; instead there were improved measurements in the Veteran's range of motion. On repetitive testing, forward flexion improved to 75 degrees, extension improved to 31 degrees, left lateral flexion improved to 48 degrees, right lateral flexion improved to 48 degrees, left lateral rotation improved to 45 degrees, and right lateral rotation improved to 45 degrees. Based on this examination, the December 2008 rating decision reduced the rating for the Veteran's lumbar spine DJD from 30 to 20 percent, effective from October 2008 (based on decreased severity of symptoms/improvement in range of motion). Legal Criteria and Analysis In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. The Veteran's lumbar spine DJD is rated under Code 5242 (for degenerative arthritis of the thoracolumbar spine) which provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; if the combined range of motion of the thoracolumbar spine is limited to 120 degrees or less; or if there is 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 rating is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. (2) For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 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 the thoracolumbar spine is 240 degrees. (3) In exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. 38 C.F.R. § 4.71a. Where a reduction in an 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 (emphasis added), a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105(e). VA's Office of General Counsel (OGC) has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991). OGC held that this regulation applies only where there is both (1) a reduction in evaluation of a service-connected disability, and (2) a reduction or discontinuance of compensation payable. A reduction in evaluation with no corresponding reduction in compensation does not meet the criteria of 38 C.F.R. § 3.105(e). Prior to the December 2008 rating decision, the Veteran's combined rating for service-connected disability was 50 percent. In addition to the lumbar spine disability, his service-connected disabilities included diabetes rated 20 percent and post-operative acromioclavivular separation rated 10 percent. While the December 2008 rating decision reduced the rating for lumbar spine DJD from 30 percent to 20 percent, effective October 9, 2008, it also granted service connection for right and left foot neuropathy, rated 10 percent each effective in July 2008. As a result, the combined rating (with consideration of the bilateral factor) became 60 percent. The reduction of the rating for lumbar spine DJD from 30 to 20 percent effective October 9, 2008 did not affect the combined rating as (with rounding) it remained 60 percent. As there was no reduction in the overall compensation paid to the Veteran, the due process requirements of 38 C.F.R. § 3.105(e) do not apply and the reduction of the rating for lumbar spine DJD to 20 percent, effective October 9, 2008 did not involve due process violation. The analysis proceeds to whether the reduction was factually warranted. General regulatory requirements for disability ratings must be met in making a determination regarding whether improvement is shown. Brown v. Brown, 5 Vet. App. 413 (1993). The entire recorded history of the disability must be reviewed. 38 C.F.R. §§ 4.1, 4.2. The evidence must reflect an actual change in the disability and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must further show that the disability has improved in such a manner that the Veteran's ability to function under the ordinary conditions of life and work has been enhanced. 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. §§ 3.344(a) ratings for disabilities subject to episodic improvement will not be based on a single examination, and reductions should not be based on an examination that was less thorough and complete than the examination based on which the rating was assigned. The provisions of 38 C.F.R. § 3.344(a) do not apply where, as here, a rating has not been in effect for 5 years, or the disability has not stabilized. 38 C.F.R. § 3.344(c). The Board finds that the reduction in the rating from 30 percent to 20 percent, effective October 9, 2008, was supported by the factual record and in accordance with the governing law and regulations, and was proper. The October 9, 2008 examination, found improved range of thoracolumbar motion. On January 2007 examination, flexion was to 50 degrees (with additional loss due to pain or on use to 40/30 degrees). On October 2008 examination flexion was to 52 degrees and was only minimally improved. However, there was no further loss of motion due to factors such as pain or use, and there was no muscle spasm or guarding resulting in abnormal posture or gait. Notably, additional loss of function due to pain on use had been the basis for the February 2007 rating decision increase in the rating for the thoracolumbar DJD. As the 30 percent rating had not been in effect for 5 years, a single examination showing improving was an adequate basis for a reduction in the rating. Clearly, as of October 9, 2008, the schedular requirements for a rating in excess of 20 percent for lumbar spine DJD were not met. The basis for the increase in the rating to 30 percent (further limitations due to pain and use) was no longer present. Therefore, the reduction in the rating was factually warranted. ORDER The appeal challenging the propriety of the reduction in the rating for the Veteran's lumbar spine DJD from 30 percent to 20 percent, effective October 9, 2008, is denied. REMAND The Veteran asserts his service-connected lumbar spine DJD has worsened beyond what is contemplated by the current 20 percent rating. He was last afforded a VA examination in April 2012. Since then he has submitted correspondence alleging further reduction in ability to perform bending, lifting and carrying tasks due to pain, and inability to assume some physical positions. He is competent to observe a reduction in functional ability. In light of his assertions of worsening in the interim, a contemporaneous examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim, not a separate and distinct claim, when raised by the record. In May 2011, the Veteran filed an application for a TDIU rating, asserting that due to his various service-connected disabilities, he is unable to work. The Board notes that the Veteran has submitted a TDIU application; however, the matter has been raised by the record in association with his claim for an increased rating for lumbar spine DJD. The matter of entitlement to a TDIU rating has not yet been adjudicated by the RO. Under the Court's guidelines in Rice, it must be remanded for such action. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record updated (to the present) records of any treatment the Veteran has received for lumbar spine DJD. He must assist in this matter by identifying all treatment (and providing releases for any private records). 2. The RO should then arrange for an orthopedic examination of the Veteran to ascertain the current severity of his lumbar spine DJD. The entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies (specifically including range of motion studies) should be performed. The examiner should note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination, and whether or not, there are any associated neurological symptoms (and if so, their nature and severity). 3. The RO should also provide the Veteran adequate notice, and then fully develop and adjudicate the matter of his entitlement to a TDIU rating. 4. The RO should then review the record and readjudicate the matters on appeal. If a benefit sought on appeal remain denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs