Citation Nr: 1329217 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-43 205 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Whether the reduction of the evaluation of the Veteran's service-connected traumatic arthritis of the cervical spine with disc disease from 40 percent to 20 percent, effective May 1, 2010, was proper. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to October 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the RO in Cleveland, Ohio that reduced the rating for the Veteran's service- connected traumatic arthritis of the cervical spine with disc disease from 40 to 20 percent. A videoconference hearing was held before the undersigned Veterans Law Judge of the Board in June 2012. A transcript of this hearing is of record. Additional pertinent evidence was received from the Veteran in June 2012. As the Veteran has waived initial RO review of this evidence, the Board will consider it. 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a September 1975 rating decision, the RO granted service connection and a 10 percent rating for degenerative arthritis of the cervical spine, effective October 25, 1974. 2. In a May 1995 rating decision, the RO granted an increased 20 percent rating for traumatic arthritis of the cervical spine, effective February 21, 1995. 3. In an April 1999 rating decision, the RO granted an increased 40 percent rating for traumatic arthritis of the cervical spine with disc disease, effective December 14, 1998, finding that the disability encompassed the cervical spine and associated radiculopathy of the upper extremities. 4. The 40 percent evaluation for traumatic arthritis of the cervical spine with disc disease was in effect from December 14, 1998 to May 1, 2010, a period of more than five years. 5. In a November 2009 rating decision, the RO proposed a reduction in the rating for the Veteran's service-connected traumatic arthritis of the cervical spine with disc disease from 40 percent to 20 percent. After the proposed reduction, the Veteran was given 60 days to present additional evidence and was notified at his address of record. 6. In a January 2010 rating decision (final reduction), the RO reduced the 40 percent rating for traumatic arthritis of the cervical spine with disc disease to 20 percent, effective May 1, 2010, in accordance with the criteria set forth in Diagnostic Codes 5242-5243. 7. The VA examination upon which the reduction was based was as full and complete as previous examinations. 8. Based on the record, sustained improvement in the range of motion of the cervical spine disability is shown; incapacitating episodes of intervertebral disc syndrome (IVDS), as defined by regulation, are not shown. 9. The Board finds that the reduction of the Veteran's disability rating, for traumatic arthritis of the cervical spine with disc disease, from 40 percent to 20 percent, was made in compliance with applicable due process laws and regulations, and was supported by the evidence as a whole contained in the record at the time of the reduction. CONCLUSION OF LAW The reduction in disability for traumatic arthritis of the cervical spine with disc disease from 40 percent to 20 percent, effective May 1, 2010, was proper and in accordance with the law; the criteria for restoration of a 40 percent rating have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.105(e), 3.344(a), (b), 4.71a, Diagnostic Codes 5242-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duties to notify and assist do not apply where the issue is a reduction in rating. The VCAA duties are only triggered by the receipt of a new "application" or claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b), (c). In the case of a reduction, there has been no application or claim, so the VCAA is inapplicable. However, there are specific particularized notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the claimant in a reduction case are set forth under 38 C.F.R. § 3.105(e), and are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). These specific notice requirements take precedence over the more general notice requirements found in the VCAA. The U.S. Court of Appeals for Veterans Claims (Court) has referred to "the canon of interpretation that the more specific trumps the general." See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one . . . .") (quoting Busic v. United States, 446 U.S. 398, 406 (1980)); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-7 (2005). As discussed in detail below, the procedural framework and safeguards set forth in 38 C.F.R. § 3.105(e) governing rating reductions were explained to the Veteran in adequate detail in a November 2009 proposed reduction letter and rating decision prior to the January 2010 final rating reduction. The Veteran was provided sufficient opportunity to present additional argument, evidence and testimony in opposition to the reduction. Therefore, consideration of the propriety of the rating reduction for his traumatic arthritis of the cervical spine with disc disease proceeds to the merits of whether reduction in the rating was appropriate. At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board finds that this was done at the June 2012 Board hearing. Moreover, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the June 2012 Board hearing. Analysis 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. 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. Procedurally, 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, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, 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 must be informed that he may request a predetermination hearing, provided that the request is received by the 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). As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections set forth in 38 C.F.R. § 3.344(a) and (b). In this case, the 40 percent rating for traumatic arthritis of the cervical spine with disc disease was effective from December 14, 1998 to May 1, 2010 and was therefore in effect for more than 5 years. Where a Veteran's schedular rating has been both stable and continuous for five years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish or continue the higher evaluation. 38 C.F.R. § 3.344(a). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown, 5 Vet. App. at 418. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); Brown, 5 Vet. App. at 420-421. Where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. In fact, the Court has consistently held that when VA reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). 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. The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Historically, in a September 1975 rating decision, the RO granted service connection and a 10 percent rating for degenerative arthritis of the cervical spine, effective October 25, 1974. In a May 1995 rating decision, the RO granted an increased 20 percent rating for traumatic arthritis of the cervical spine, effective February 21, 1995. In an April 1999 rating decision, the RO granted an increased 40 percent rating for traumatic arthritis of the cervical spine with disc disease, effective December 14, 1998, finding that the disability encompassed the cervical spine and associated radiculopathy of the upper extremities, under Diagnostic Code 5010 (pertaining to arthritis) and Diagnostic Code 5293 (the former Diagnostic Code pertaining to intervertebral disc syndrome (IVDS)). The Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). Specifically, in the November 2009 notice letter and rating decision, the RO complied with these procedural requirements. The Veteran was given 60 days to present additional evidence and was notified at his address of record. He did not request a predetermination hearing. The Veteran was informed that the reason the RO proposed to reduce his rating for the service-connected cervical spine disability from 40 percent to 20 percent was because his condition had improved. In the accompanying November 2009 rating decision, the RO proposed to reduce the Veteran's disability evaluation for traumatic arthritis of the cervical spine with disc disease from 40 percent to 20 percent. The final reduction was implemented in a January 2010 rating decision. The effective date of the reduction, May 1, 2010, was effective the last day of the month after expiration of the 60-day period from the date of notice (February 1, 2010) of the January 2010 final rating action, as set forth in the applicable VA regulation. See 38 C.F.R. § 3.105(e). Thus, all procedural requirements were met. Upon review of the entire record, the evidence supports the reduction of the Veteran's disability rating from 40 to 20 percent for traumatic arthritis of the cervical spine with disc disease effective May 1, 2010. The reduction was proper for the reasons discussed below. The Board notes that the criteria for evaluating spine disabilities were revised several years prior to the instant appeal. The regulations for evaluating IVDS were amended on September 23, 2002, and the criteria for rating all spine disabilities were amended September 26, 2003. IVDS was previously rated under the former Diagnostic Code 5293, and is now rated under current Diagnostic Code 5243. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). In this regard, the Board observes that governing law and regulation provide that a disability rating may not be reduced simply because the rating criteria have changed. See 38 U.S.C.A. § 1155; 38 C.F.R. § 3.951(a). 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). Under the General Rating Formula for Diseases and Injuries of the Spine, 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 10 percent evaluation is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 where there is forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 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 cervical spine is 340 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. See also Plate V, 38 C.F.R. § 4.71a. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). 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. 38 C.F.R. § 4.71a (2012). Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a (2012). Note (5) provides that, 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. 38 C.F.R. § 4.71a (2012). Under Diagnostic Code 5243, intervertebral disc syndrome may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a (2012). Note (1) to the Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 38 C.F.R. § 4.71a (2012). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The main evidentiary basis for the reduction was the VA examination conducted in October 2009. This examination was as "full and complete" as the previous VA examinations conducted in February 2003 and March 2007. See 38 C.F.R. § 3.344(a). The February 2003 VA examination was not the basis for the original assignment of a 40 percent evaluation in an April 1999 decision, but rather was conducted in conjunction with a May 2003 rating decision that continued the 40 percent evaluation. The March 2007 VA examination was conducted prior to an April 2007 rating decision which found that the cervical spine disability did not meet the rating criteria for a 40 percent rating, but nonetheless confirmed and continued the 40 percent rating. In its April 2007 decision, the RO also granted service connection and a separate 10 percent rating for right upper extremity radiculopathy as secondary to service-connected traumatic arthritis of the cervical spine with disc disease. In a March 2009 rating decision, the RO granted an increased 30 percent rating for right upper extremity radiculopathy, and granted service connection and a 10 percent rating for left upper extremity radiculopathy as secondary to traumatic arthritis of the cervical spine with disc disease. In other words, the Veteran's bilateral radiculopathy of the upper extremities was previously rated as part of the disability of traumatic arthritis of the cervical spine with disc disease, but now these disabilities are rated separately. The October 2009 VA examination was adequate for rating purposes. It was based upon an interview with the Veteran, as well as objective clinical examination. The examiner noted the Veteran's subjective complaints. In addition, the VA examination reflected sustained, material improvement of the traumatic arthritis of the cervical spine with disc disease, reasonably certain to continue under the ordinary conditions of life. See 38 C.F.R. § 3.344(a); Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993). The detailed discussion below supports this conclusion. On VA compensation examination in February 2003, the Veteran complained of pain from to his cervical spine disability, as well as shooting pains down the sides of his neck posteriorly that radiated to his shoulders, and headaches. On examination, range of motion of the cervical spine was as follows: flexion to 15 degrees, extension to 10 degrees, and lateral bending to 5 degrees bilaterally. Sensation of the right upper extremity was diminished, and motor strength full throughout, except it was 4/5 in the right bicep. An X-ray study showed degenerative changes at C3-4, C4-5, and C5-6. The examiner noted that the Veteran failed to report for a scheduled magnetic resonance imaging (MRI) scan of the cervical spine. The diagnostic impression was herniated disc at C4-5, C5-6 and C6-7 by history, and post-traumatic degenerative changes on the cervical spine at C3-4, C4-5 and C5-6. The examiner stated that his examination was unremarkable in general except for the right upper extremity. VA outpatient treatment records reflect intermittent treatment for chronic cervical spine pain. A December 2005 physician outpatient note reflects that the Veteran complained of stabbing pain in his neck, going from his neck to his right arm. On examination, he had normal range of motion of the neck, and his shoulders were symmetrical with normal range of motion. The diagnostic assessment was neck pain. A November 2006 computed tomography scan of the cervical spine showed significant disc space narrowing at C4-5 and narrowing of the C6-C7 disc space, and there was no documentation of any definite disc herniation. VA and private medical records reflect that the Veteran also has severe chronic obstructive pulmonary disease (COPD). On VA compensation examination in March 2007, the Veteran complained of chronic stabbing pain in the cervical spine at C3 through C6, with radiation of pain to his right upper extremity. He also reported weakness, stiffness and fatigue by the end of the day. On examination, there was no ankylosis. He had tightness of the upper trapezius muscle extending up into C4 and C3. There were sensory and motor deficits in the right upper extremity. Range of motion was as follows: flexion to 20 degrees without pain, and to 20- 30 degrees with pain, extension to 20 degrees with pain throughout, right and left lateral flexion was 0 to 10 degrees without pain and 10 to 30 degrees with pain, right rotation was to 40 degrees without pain, and to 50 degrees with pain, and left rotation was to 40 degrees without pain, and to 40-55 degrees with pain. Pain was increased on range of motion against resistance. After repetitive motion, there was no decrease in range of motion, but there was increased pain and fatigue. The Veteran denied periods of flare-up. The examiner noted that there were no spasms, and that the Veteran did not have incapacitating episodes. No imaging tests were ordered. The diagnosis was traumatic arthritis of the cervical spine with disc disease with radiculopathy. A June 2007 private electromyography and nerve conduction study showed bilateral median mononeuropathies at the wrist (carpal tunnel syndrome), mild right ulnar neuropathy at the elbow, bilateral (right greater than left) chronic mild to moderate cervical polyradiculopathies involving the C5-6 to C7-8 myotomes, and mild right ulnar mononeuropathy at the wrist. On VA compensation examination in February 2009, performed to evaluate the Veteran's bilateral radiculopathy of the upper extremities, the examiner indicated that cervical spine range of motion was reduced 30 percent, except right lateral flexion was limited to 15 percent, which reproduced his main symptoms in the right upper extremity. The diagnosis was status post remote cervical spine strain times two, and degenerative disc disease with bilateral cervical radiculopathies. He also diagnosed bilateral carpal tunnel syndrome. The examiner noted that a May 2007 magnetic resonance imaging (MRI) scan of the cervical spine showed disc dissection and disc degenerative change at multiple levels with relative sparing of the C5-6, C6-7 and C7-T1 levels. There was some mild spondylosis, and no significant central stenosis. The diagnostic impression was neural foraminal narrowing without spinal stenosis. The examiner noted the electromyography findings, but indicated that on neurological examination, there were no peripheral nerve abnormalities. On musculoskeletal examination, his predominant complaint (use-related low posterior neck pain that radiates to the left shoulder) is reproduced by right lateral neck flexion. The examiner opined that the left upper extremity radiculopathy was secondary to his cervical spine disc disease, but his bilateral carpal tunnel syndrome was not caused by or the result of his cervical spine disc disease. On VA examination in October 2009, the Veteran complained of pain of the neck, shoulders, and right arm, and headaches. He reported daily constant severe pain. He also reported moderate stiffness and weakness of the neck. He reported flare-ups that lasted 24 hours, and said the frequency varied. On examination, gait, posture, and head position were normal. There was abnormal curvature of the spine, specifically reduced cervical lordosis. There was reduced motion of the cervical spine, and no ankylosis. There was involvement of multiple cervical discs. Range of motion was as follows: flexion to 40 degrees, extension to 60 degrees, left and right lateral flexion to 45 degrees, left lateral rotation to 60 degrees and right lateral rotation to 70 degrees. Pain and weakness were present on the examination, but there was no spasm, effusion, instability, tenderness, redness, heat, abnormal movement or guarding of movement. After repetition of range of motion, there was an additional limitation of motion of extension, which was performed to 55 degrees. There was no additional fatigue, lack of endurance or incoordination. The examiner noted that there was IVDS of the cervical spine, with muscle atrophy and wasting at C5-6. There was no reflex loss and no sensory impairment. He indicated that there were no incapacitating episodes in the past 12 months. The diagnoses were cervical degenerative disc disease, and IVDS of the cervical spine with axillary nerve involvement, radiculopathy through bilateral arms, and muscle wasting. A November 2009 X-ray study showed multilevel degenerative disc change, most advanced at C4-5 and C6-7, and slight malalignment at C3-4. A report of a private electromyography and nerve conduction study dated in February 2010 shows no evidence of a cervical radiculopathy as had been seen in June 2007. A February 2012 physical therapy report reflects decreased range of motion of the cervical spine. In written statements and testimony submitted during this appeal, the Veteran essentially contends that the October 2009 VA examination was inadequate, primarily because the examiner reportedly pressed on his head and increased his cervical spine range of motion. He asserts that therefore the range of motion reported at that examination was inaccurate. He also contends that the examiner was a few feet away from him during parts of the examination. He also asserts that since findings shown in his X-ray studies and electromyography studies had not changed, then his range of motion also would not change unless it was coerced. See his March 2010 statement. Moreover, he has recently contended that the doctor did not use a goniometer or other instrument to measure the range of motion of his cervical spine. See his June 2012 statement and June 2012 hearing testimony. However, the Board finds that this assertion is not credible, in light of the fact that the Veteran has previously reported that the examiner used a "protractor" to measure his range of motion. See his December 2009 statement. Although it is not explicitly stated in the report that the examiner used a goniometer in making these determinations, the examiner specified the ranges of motion in degrees. There is no evidence the examiner did not use a goniometer, and the mere fact that he cited the degree measurements tends to suggest he did, despite the contentions to the contrary. Finally, the Veteran feels that the examination was unprofessional, as the examiner used a folding chair and filled out his report on the examination table. An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that the October 2009 VA examination was adequate, as the examiner reported the Veteran's complaints, he performed a physical examination, the examination report contains sufficient detail, and the diagnoses are supported by the findings in the examination report. See 38 C.F.R. § 4.2; Id. The Board again notes that the neurological manifestations of the Veteran's service-connected disability, i.e., his bilateral cervical radiculopathy, are separately compensated, and the established ratings for these disabilities are not at issue. Upon review of the evidence of record, the Board finds that as the evidence clearly demonstrates that the Veteran's cervical spine range of motion has improved, the reduction to 20 percent is warranted. Specifically, in February 2003, forward flexion was to 15 degrees and extension was to 10 degrees. Range of motion was described as normal in December 2005. In March 2007, flexion was to 20 degrees without pain, and to 20-30 degrees with pain, and extension was to 20 degrees with pain. In February 2009, cervical spine range of motion was only reduced by 30 percent (in other words, flexion and extension were performed to approximately 30 degrees, since normal cervical spine flexion and extension are to 45 degrees). Finally on VA examination in October 2009 flexion was to 40 degrees, and extension was to 55 degrees, even with consideration of pain. Such a sustained improvement in range of motion warrants a rating reduction, and his disability picture from traumatic arthritis of the cervical spine with disc disease does not more closely approximate the criteria for a higher evaluation under Diagnostic Code 5242, as the evidence as a whole contained in the record at the time of the reduction did not show forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. The Board finds that material improvement has been shown, and in light of the consistent improvement in range of motion, that the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The Board has also considered whether the rating reduction was warranted via application of Diagnostic Code 5243, concerning IVDS. However, the evidence as a whole contained in the record at the time of the reduction does not establish incapacitating episodes, as defined by Note (1) to Diagnostic Code 5243. Although the Veteran reports that he must frequently rest due to his neck pain, the Board finds that there is no evidence of a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. Moreover, at the October 2009 VA examination, the Veteran denied any incapacitating episodes for the past 12 months. At his Board hearing, the Veteran complained he had incapacitating episodes once or twice per week, but he also denied that bed rest was prescribed by a physician. When describing his symptoms, he did not indicate that he was wholly bedridden but was able to move around and took rest in bed, as needed. As such, the rating reduction was also proper under Diagnostic Code 5243. In sum, the preponderance of the evidence demonstrates that the reduction in rating from 40 to 20 percent for the Veteran's traumatic arthritis of the cervical spine with disc disease was proper and in accordance with Diagnostic Codes 5242-5243. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(e), 4.71a, Diagnostic Codes 5242-5243 (2012); Kitchens, 7 Vet. App. at 325. Restoration of a 40 percent rating is therefore denied. ORDER Reduction of the disability rating for traumatic arthritis of the cervical spine with disc disease from 40 to 20 percent, effective May 1, 2010, was proper; therefore, restoration of a 40 percent rating is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs