Citation Nr: 1328281 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-05 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a restoration of a 40 percent disability rating for a service-connected degenerative disc disease of the lumbar spine from May 1, 2009. 2. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from May 1969 to January 1972 and from August 1980 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2008 and February 2009 rating decisions by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran appeared and provided testimony before the undersigned Acting Veterans Law Judge. Also as an initial matter, the Board notes that it has reviewed not only the Veteran's physical claims file, but also the "Virtual VA" system. A review of the documents in Virtual VA found that they are either duplicates of evidence in the paper claims file or are not relevant to the issue on appeal. The issue of entitlement to a disability rating in excess of 40 percent for a low back disability and entitlement to a TDIU due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT An improvement in the Veteran's service-connected low back disability was not adequately demonstrated by the evidence of record at the time of the February 2009 rating decision reducing the rating for the disability from 40 percent to 20 percent. CONCLUSION OF LAW The criteria to reduce the Veteran disability rating assigned for service-connected degenerative disc disease of the lumbar spine from 40 percent to 20 percent, have not been met, and restoration is warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (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). The VCAA applies to this claim. Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. II. Legal Criteria Where action by the rating agency would result in the reduction or discontinuance of compensation payments, section 3.105(e) requires that a rating initially proposing the reduction or discontinuance be prepared setting out all material facts and reasons for the proposed action. The regulation requires that the beneficiary of the compensation payments be notified at his or her latest address of record of the contemplated action, furnished detailed reasons, and be given 60 days from the date of the notice for the presentation of additional evidence to show that the compensation payments should be continued at their present level. See 38 C.F.R. § 3.105(e). Where a disability rating has been continued for at least 5 years at the same level, under 38 C.F.R. § 3.344 , if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation. In determining the propriety of a previous evaluation, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability. 38 C.F.R. § 3.344(a). Likewise, in such cases provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures. 38 C.F.R. § 3.344(b). In this case, however, the 40 percent rating in question was not in effect for 5 years or more, and the preceding paragraphs (a) and (b) do not apply. Accordingly, reexaminations disclosing improvement, physical or mental, in these cases will warrant reduction in rating. 38 C.F.R. § 3.344(c). The determination in a reduction in rating case must include the proper application as to the standard of proof. To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b) as required. See Brown v. Brown, 5 Vet. App. 413, 420 (1993); Peyton, 1 Vet. App. at 286. Disabilities of the spine are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5242 (2012). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, a 20 percent disability evaluation is contemplated when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degree; 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 40 percent disability rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, 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 are 0 to 30 degrees, and left and right lateral rotation are 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 motion of thoracolumbar spine is to 240 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five 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, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. III. Analysis At the outset, the Board notes that a 40 percent disability rating was in effect from August 4, 2005 to May 1, 2009. Since that period is less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) regarding stabilization of disability ratings do not apply. The Veteran underwent a VA examination in February 2007. At that time he reported chronic low back pain at a 5 or 6 out of 10 that radiated down the right leg into his foot. He endorsed flare-ups of pain that was an 8 out of 10 and occurred almost nightly, and usually 2 times per night, and lasted approximately 30 minutes. He reported aggravating factors of lying or sitting (immobility), walking greater than 50 yards, cold/wet weather, bending over, and lifting greater than 25 pounds. He reported his prescribed narcotic pain medication (hydrocodone) and getting up and walking out the stiffness related to immobility helped relieve his flare-ups. He denied any incapacitating episodes in the previous 12 months. He reported that when he drove he had to stop after about 1 hour to walk around. He reported that he showered without difficulty and without a chair. He reported he sat down to put on shorts, pants, shoes, and socks, and that he tried not to bend over. He had no difficulties eating. He reported that he had a handicapped toilet to assist him with toileting. He reported that he used a cane for ambulation and that he could walk about 50 yards before he had right hip pain. On physical examination, the Veteran was noted to have a mild right limp with bilateral out-toeing. He had difficulty removing his clothes, he brought his feet up to his lap to put on his shoes and socks, and had some difficulty tying his shoes. He reported that he used a small step ladder to put his feet to help with that at home. Range of motion measurements were as follows: flexion from 0 to 75 degrees, with pain at 20 degrees; extension from 0 to 5 degrees with pain throughout; left and right lateral flexion from 0 to 20 degrees with discomfort throughout; left and right lateral rotation from 0 to 30 degrees with discomfort throughout. Throughout the range of motion exercises, the Veteran stood in a slightly curved forward posture with his knees slightly bent and he occasionally needed to reach out to steady himself on the examination table. Spasm of the low back musculature was noted with extension. On repetitive testing, flexion measurements decreased to 0 to 40 degrees with pain. On March 2006 computed tomography (CT) scan the following was noted: severe degenerative disc space narrowing at T12-L1, L1-2, L3-4, L4-5; prominent spurring along the posterior margins of L1-2 and T12-L1, with broad based bulging at each of those levels; disc degeneration with mild bilateral foraminal narrowing at L4-5 due to facet joint disease. Further, the CT results noted that central protrusion of disc material at T12-L1 and L1-2 could not be excluded. On October 2006 magnetic resonance imaging (MRI) of the lumbar spine, multilevel degenerative disc disease from T10-11 through L2-3 with disc osteophyte complexes at each level was noted. The MRI also noted L3-4 bilateral component annular protrusion larger to the right of the midline; L4-5 right sided laminectomy and discectomy changes with significant scar tissue enhancement; and bilateral neural foraminal narrowing L5-S1 from hypertrophic facet joint disease. The examiner diagnosed DDD of the lumbar spine with right side sciatica and degenerative changes with noted physical and X-ray findings. In a February 2007 rating decision, the RO increased the Veteran's low back disability rating from 20 percent to 40 percent. In January 2008, the Veteran was afforded another VA examination in response to his claim that his low back disability had increased in severity. At that time, the Veteran reported that he had constant moderate pain in his low back that was a 5 out of 10 and radiated to the back of both hips and into both lower extremities. He reported that he took pain pills, which provided adequate control for his pain. He reported flare-ups of pain, which occurred at least 2 times a day, when the pain was a 9 or 10 out of 10. He reported that the flare-ups were alleviated by rest and medication. He denied any incapacitating episodes in the last 12 months. He reported that he used a walking stick for ambulation. He denied any history of weight loss, fever, fatigue, dizziness, and bladder or bowel dysfunction. He reported that he could manage his activities of daily living with medication on an as needed basis, but that all his activities have considerably slowed down. He reported that he was unemployed and that when he would drive he needed to stop after about 45 minutes or an hour to stretch or sometimes take pain medication. On physical examination, the Veteran was found to have a normal gait with the use of an improvised walking stick. He required assistance getting on and off the examination table. Range of motion measurements were as follows: flexion from 0 to 50 degrees, with pain at 30 degrees; extension from 0 to 0 degrees; left and right lateral flexion from 0 to 10 degrees, with pain at 10 degrees; left and right lateral rotation from 0 to 20 degrees; with pain at 20 degrees. Repetitive testing produced increased pain, weakness, lack of endurance, fatigue, and incoordination. X-ray revealed a previously noted compression of L1 and L4 vertebrae; mild retrolisthesis of L4 relative to L5; diffuse decrease in intervertebral disk space particularly at L4-5; mild progressive narrowing of L3-4 and L4-5 disk spaces compared to September 2005 images. Degenerative disk disease of the lumbar spine was diagnosed. In an August 2008 rating decision, the RO proposed to reduce the Veteran's low back disability rating to 20 percent based on the findings of the January 2008 examination report. The Veteran promptly disagreed with the proposed reduction in a September 2008 statement. In his statement, the Veteran reported that his low back disability had continued to worsen and that he had pain in his low back with any degree of movement. In a February 2009 rating decision, the Veteran's low back disability was reduced from 40 percent to 20 percent based on the January 2008 examination report that showed he had flexion from 0 to 30 degrees without pain, but to 50 degrees with pain. In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the reduction of the Veteran's disability rating for his service-connected low back disability from 40 percent to 20 percent was improper. In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). In this case, the 40 percent disability rating was assigned based on the findings of the February 2007 VA examination. During that examination, the Veteran had forward flexion to 20 degrees, but to 75 degrees with pain. On repetitive testing, flexion was 0 to 40 degrees with pain. The rating reduction was based on the findings of the January 2008 VA examination, which showed forward flexion to 30 degrees, but to 50 degrees with pain. Further, the Board notes that in his September 2008 statement expressing his disagreement with the proposed reduction, the Veteran asserted that he had pain at all degrees of motion. Comparing the results of the two VA examinations, the Veteran had functional forward flexion limited to 20 degrees in February 2007 and 30 degrees in January 2008. Repetitive testing was noted to increase pain, weakness, lack of endurance, fatigue, and incoordination. Extension, right and left lateral flexion, and right and left lateral rotation ranges of motion all worsened from the February 2007 to the January 2008 VA examinations. In review, although a 10 degree difference in the flexion range of motion findings was noted, improvement in the overall low back disability is not clearly shown by the January 2008 VA examination. The Veteran reported that he continued to experience pain with motion and increased pain following repetitive use, and his functional range of motion was still severely limited at 30 degrees. Further, he continued to complain of worsening symptoms and he was still taking the same amount of prescription narcotic pain killers. Radiology reports also do not appear to show any improvement in his low back disability Therefore, as the record does not show that the Veteran's low back disability had improved and the Veteran's functional limitation of motion was limited to 30 degrees of flexion, the Board finds that the reduction of the disability rating from 40 percent to 20 percent was improper. Accordingly, restoration of a 40 percent disability rating for a low back disability is granted. ORDER Entitlement to restoration of a 40 percent disability rating for degenerative disc disease of the lumbar spine from May 1, 2009, is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided. The Veteran has reported that his service-connected low back disability has increased in severity, so much so that he is unable to secure employment. Most recently, at his May 2013 Board hearing the Veteran testified that symptoms of his low back disability had continued to worsen. He also testified that because of his low back disability he had been turned down for employment as a delivery truck driver, in part due to the symptoms of his low back disability and in part due to the medication he was required to take to control those symptoms. As the Veteran has asserted that the symptoms of his low back disability have worsened, and that this disability has prevented him from securing employment, the Board finds that a new VA examination is necessary to determine the current severity of all impairment resulting from his service- connected low back disability, to include the functional impairment. Additionally, current VA medical center and any current private treatment records pertaining to the Veteran's low back disability should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified, but not provided by the Veteran, to include any pertinent VA Medical Center and private treatment records. If it is unable to obtain any such evidence, it should so inform the Veteran and request that he submit the outstanding evidence. 2. Then, the Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current severity of all impairment resulting from his service-connected low back disability. The claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or AMC should ensure that all information required for rating purposes is provided. All manifestations of the Veteran's low back disability should be identified, including a full description of the effects of his disability upon his ordinary activities, if any. In addition, based on the examination results and the review of the record, the examiner should provide an opinion concerning the functional impairment caused by the Veteran's service-connected low back disability. The examiner should provide this opinion considering the Veteran's education and occupational experience, but irrespective of age and nonservice- connected disabilities. The complete rationale for all opinions expressed must be provided. 3. When the development requested has been completed, and the RO or the AMC has ensured compliance with the requested actions, this case should again be reviewed and readjudicated by the RO or the AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs