Citation Nr: 1329710 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-22 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for radiculopathy of the right lower extremity as secondary to service-connected lumbar spine degenerative joint disease (DJD) and degenerative disc disease (DDD). 2. Entitlement to an evaluation in excess of 10 percent for chronic proctitis with rectal bleeding. 3. Whether the reduction of the evaluation for lumbar spine DJD and DDD from a 40-percent evaluation to a 20-percent evaluation from January 1, 2010 to March 6, 2012, was proper. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from October 1989 to July 1993 and from May 1994 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2009, October 2009, and September 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The more probative evidence weighs against a finding that the Veteran's right lower extremity neurological symptoms are in any way related to service-connected lumbar spine DJD and DDD. 2. The more probative evidence weighs against a finding that the Veteran's service-connected proctitis with rectal bleeding has been manifested by occasional involuntary bowel movements necessitating wearing of pad. 3. The procedural requirements for proposing and effectuating a reduction in evaluation for a service-connected disability were followed; and in an October 2009 rating decision, the RO decreased the Veteran's evaluation for lumbar spine DJD and DDD from 40 percent to 20 percent effective from January 1, 2010. 4. At the time of the reduction in the disability rating from 40 to 20 percent, the 40 percent rating for the Veteran's lumbar spine DJD and DDD had been in effect for less than five years. 5. An August 2007 VA examination report indicates that the Veteran demonstrated active flexion to 10 degrees and passive flexion to 30 degrees; and a May 2009 VA examination report indicates that the Veteran demonstrated flexion to 60 degrees and no incapacitating episodes. Flexion was to 45 degrees in April 2011. CONCLUSIONS OF LAW 1. The Veteran's right lower extremity neurological symptoms are not proximately due to, the result of, or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for an evaluation in excess of 10 percent for service-connected chronic proctitis with rectal bleeding have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.114, Diagnostic Codes 7332, 7335 (2012). 3. The reduction of the disability rating for the Veteran's service-connected lumbar spine DJD and DDD from 40 percent to 20 percent was proper. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.105(e) and (i) and 3.344 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the claims of entitlement to service connection for right lower extremity radiculopathy and entitlement to an evaluation in excess of 10 percent for chronic proctitis with rectal bleeding, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recent readjudicated in April 2012. With respect to the claim to reverse the reduction of the rating assignment of service-connected lumbar spine disability, under 38 C.F.R. § 3.105, prior notice of a reduction is required if the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made. In July 2009, the RO notified the Veteran of the proposed reduction, that he had 60 days to submit evidence to show that the change should not be made, and that he could request a personal hearing to present evidence or argument. Thus, the RO complied with the applicable regulations. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection The Veteran contends that he suffers from right lower extremity radiculopathy secondary to service-connected lumbar spine DJD and DDD. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 or 1131; 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). At VA examination in June 2005, pinprick sensation was impaired and felt dull at the lateral aspect of the left thigh and left calf (L5 dermatome distribution). The Veteran was diagnosed as having, inter alia, L4-S1 sensory neuropathy left L5 dermatome. In September 2005, the Veteran presented with complaints of paresthesia of right leg twice a week lasting a few minutes. In February 2006, the Veteran presented with complaints of radicular pain in the right leg that was new and unbearable since that morning. The Veteran reported that the pain ran into the right leg almost to the knee and that sometimes the top of the foot felt "different." At the May 2006 VA examination, the Veteran reported right and left posterior leg discomfort from the buttock to just above the knees once a month. The Veteran denied any leg tingling or numbness, just pain. The examiner noted, No neural impingement on examination. Essentially normal neurological examination with excellent reflexes intact. The current symptoms, which subjectively are significant, appear to be due to mechanical issues and not from a radiculopathy of his known disc bulge at L5-S1. Tenderness noted with both sacroiliac joints, but no malrotation evident. Inconsistencies are noted in regards to ROM testing, heavy reported use of narcotics but able to perform full time Moderate Heavy labor work with excessive overtime on a daily basis for 6 months with no days off and no lost work time, no radicular symptoms on exam and minimal changes seen on MRI and plain films. In March 2007, the Veteran presented with complaints of shooting pain down the left leg whenever he forced urination. After physical examination, the Veteran was diagnosed as having lateral left leg pain that shoots down his lateral thigh only when he forces urination. The provider noted, "I suspect this is initiated from his djd lumbar spine. He lifts 100lb machine daily at work so he is at constant risk of irritating his back. ..." At the August 2007 VA examination, the Veteran reported intermittent sharp pain from left lower spine to posterior left knee. The Veteran stated that when he sits on a couch, his left leg gets numb and then becomes painful. Parethesias down his left posterior medial thigh which end at the knee were noted and were not positional. Motor examination revealed active movement against full resistance, sensory examination was normal, and reflex examination was normal. In April 2009, the Veteran presented with complaints of lower extremity numbness on and off. At the May 2009 VA examination, the Veteran reported no leg weakness, tingling, or numbness. There were no radicular symptoms on examination and minimal changes were noted to have been seen on MRI and plain films. Motor examination revealed active movement against full resistance, sensory examination was normal, and reflex examination was normal. At the VA examination in April 2010, the Veteran reported radiating pain to posterior thighs both right and left legs to just above the knees. Motor examination revealed active movement against full resistance, sensory examination was normal, and reflex examination was normal except for bilateral knee jerk which showed hyperactive without clonus. The Veteran was diagnosed as having, inter alia, right lower extremity radiculopathy. The examiner noted that she could not say whether lower extremity radiculopathy was caused by service-connected lumbar degenerative disease without resorting to mere speculation. At the VA examination in April 2011, the Veteran reported intermittent right lateral thigh paresthesia. Radiating pain was noted to start at the right upper hip down the outer right leg to above the knee. Motor and reflex examinations were normal. Sensory examination demonstrated decreased pain/pinprick and light touch at right lateral thigh. The examiner noted that the Veteran had vague scattered patches with mild decrease but that these were nondermatomal and of no clinical significance. The examiner noted no objective lumbar radiculopathy. A diagnosis of right leg lateral cutaneous nerve entrapment, also known as meralgia paresthetica, was rendered. The examiner opined that this diagnosis was not related to or permanently aggravated by the Veteran's lumbar condition. At the VA examination in March 2012, the Veteran reported severe intermittent dull pain and mild paresthesias and/or dysesthesias of the right lower extremity. Muscle strength testing and reflex examination was normal. Sensory examination demonstrated decreased sensation of right upper anterior thigh. The examiner noted incomplete paralysis of the external cutaneous nerve of the right thigh. The examiner rendered an opinion that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition. The examiner explained that the Veteran had right meralgia paresthetica (lateral femoral cutaneous nerve entrapment) and noted that the straight leg testing was negative, he had a risk factor of wearing his wallet on the right side, and that his examination showed a classic decrease in sensation in the right lateral femoral cutaneous nerve distribution. The examiner noted that this is not caused by lumbar degenerative disease or any lumbar pathology nor is it aggravated by it. It is caused by local entrapment of the nerve after it leaves the lumbar spine region. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran has right lower extremity radiculopathy caused by service-connected lumbar DJD and DDD, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. Initially, the Board notes that opinions rendered in June 2005 and March 2007 related to the left lower extremity which is not before the Board at this time. The opinions regarding the Veteran's right lower extremity neurological symptoms were rendered in May 2006, April 2010, April 2011, and March 2012. The May 2006 VA examiner noted no neural impingement on examination and essentially normal neurological examination and opined that the current symptoms appeared to be due to mechanical issues and not from a radiculopathy of disc bulge at L5-S1. The April 2010 VA examiner diagnosed right lower extremity radiculopathy but stated that she could not say whether lower extremity radiculopathy was caused by service-connected lumbar degenerative disease without resorting to mere speculation. The April 2011 VA examiner noted no objective lumbar radiculopathy and diagnosed right leg lateral cutaneous nerve entrapment, also known as meralgia paresthetica, not related to or permanently aggravated by the Veteran's lumbar condition. The March 2012 VA examiner noted diagnosed right meralgia paresthetica (lateral femoral cutaneous nerve entrapment) not caused or aggravated by lumbar degenerative disease or any lumbar pathology. Thus, there is only one VA opinion which diagnoses the Veteran as having right lower extremity radiculopathy. The other three opinions indicate that the Veteran does not have lower extremity lumbar radiculopathy and two of those opinions agree that the diagnosis is meralgia paresthetica. Thus, the Board finds that the probative value of the one VA medical opinion which diagnosed the Veteran with right lower extremity radiculopathy is outweighed by the probative value of the two VA medical opinions which diagnosed the Veteran with meralgia paresthetica. Moreover, the most recent examination provides the most comprehensive rationale for the findings entered. The Board must also consider the Veteran's own opinion that he has right lower extremity lumbar radiculopathy. In this case, the Board does not find him competent to provide an opinion regarding the diagnosis or etiology of his right lower extremity symptoms as these questions are of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran and her husband therein cannot be accepted as competent medical evidence. Thus, the more probative evidence of record weighs against a finding that the Veteran has current right lower extremity radiculopathy related to service-connected lumbar spine DJD and DDD. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already established service-connected proctitis with rectal bleeding, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran is service-connected for chronic proctitis with rectal bleeding, currently evaluated as 10 percent disabling, under 38 C.F.R. § 4.114, Diagnostic Code 7399-7335. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Diagnostic Code 7335 provides that fistula in ano is rated as impairment of sphincter control. Diagnostic Code 7332 pertains to impairment of sphincter control of the rectum and anus. Constant slight or occasional moderate leakage warrants a 10 percent evaluation. Occasional involuntary bowel movements, necessitating wearing of pad warrants a 30 percent evaluation. Extensive leakage and fairly frequent involuntary bowel movements warrants a 60 percent evaluation. Complete loss of sphincter control warrants a 100 percent evaluation. The Veteran underwent VA examination in May 2009 at which time he reported rectal bleeding usually after prolonged diarrhea or hard stools. The Veteran reported that the last episode lasted approximately three days and that he had to wear a pad on one occasion. Physical examination including an anal scope showed no physical findings of hemorrhoids, anorectal fistula, anal or rectal stricture, sphincter impairment, or rectal prolapse. A diagnosis of chronic intermittent proctitis with rectal bleeding was rendered. In September 2009, the Veteran underwent colonoscopy with biopsy. Diagnosis of rectal tissue showed benign rectal mucosal fragments with mild chronic inflammation, edema, and a focal lymphoid aggregate (nonspecific; nondiagnostic); negative for granuloma, erosion/ulceration, or dysplasia. The Veteran underwent VA examination in April 2010 at which time he reported that he had to wear a pad to bed every night because of the frequent bleeding otherwise he would awake with his sheets all bloody. Physical examination showed no physical findings of hemorrhoids, anorectal fistula, anal or rectal stricture, sphincter impairment, or rectal prolapse. A diagnosis of chronic proctitis with rectal bleeding; benign rectal mucosa with chronic inflammation, edema, and a non specific/nondiagnostic focal lymphoid aggregate on colonoscopy September 2009 per pathology report was rendered. The examiner noted that this diagnosis at times had significant effect on occupational activities causing him to have to change his underwear due to rectal bleeding. The Veteran underwent VA examination in April 2011 at which time he reported rectal bleeding continuously that never stopped mixed with feces. The Veteran denied incontinence. The Veteran reported that he had discontinued all treatment for this condition for unclear reasons for more than one year. The Veteran also reported that he was evaluated at another VA facility and that it was recommended that he begin mesalamine suppositories but he stated that he never used them and did not follow up with them any further. The Veteran reported than he transferred to Marshfield Clinic and that he just started medicine a few days prior but could not recall the name. The Veteran stated that he wore a pad at night but that when at home, he did not need one. The examiner noted that the Veteran's answers were vague and inconsistent and that GI notes did not list any need for pads. The examiner also noted that labs had normal hemoglobin and normal iron studies inconsistent with someone having chronic GI bleeding. Physical examination showed no physical findings of hemorrhoids, anorectal fistula, anal or rectal stricture, sphincter impairment, or rectal prolapse. The skin around the buttocks and rectal area were all normal with no blood, no redness or inflammation, and no maceration. The skin was health and intact. Rectal examination was normal, and there was no blood on the glove. The examination was not consistent with chronic rectal drainage. The examiner noted that reported symptoms were out of proportion to the objective colonoscopy examination, pathology examination results from tissue biopsy, and objective physical findings. The examiner noted that the blood studies had all been normal and were not consistent with a chronic GI bleed. The examiner noted that the objective findings supported minimal to mild involvement only without objective need for use of absorbent pads continuously due to the service-connected condition. At the March 2012 VA examination, the Veteran reported that he wore depends pads and that he had to change his pads five to six times a day. The Veteran stated that he had a very small amount of rectal bleeding daily and that he also had fecal incontinence daily. The Veteran reported that periodically, he just leaked stool and blood. The Veteran noted that he had been followed by a non-VA GI doctor who put him on medications but that nothing seems to help. The Veteran stated that he was on no medications or treatment for this but that he changed his absorbable pad five to six times a day and kept the area clean. The Veteran denied pain and noted that this had been going on for years. Physical examination of the Veteran was normal with no external hemorrhoids, anal fissures, or other abnormalities. The examiner noted that he saw no evidence of blood and the Veteran's sphincter tone was normal. In adjudicating a claim, the Board must assess the competence and credibility of the veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board notes that at the March 2012 VA examination, the Veteran reported fecal incontinence daily, that he periodically leaked stool and blood, and that this had been going on for years. In this case, the Board finds that the Veteran is competent to report that he has experienced fecal incontinence for years. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Board notes that at the April 2011 VA examination, the Veteran denied incontinence; and at the VA examinations in May 2009 and April 2010, he only reported bleeding. Thus, the Veteran's report that that he had fecal incontinence daily that had been going on for years is inconsistent with his report of symptoms made in May 2009, April 2010, and April 2011. In addition, the Veteran's statement that he had fecal incontinence daily is also inconsistent with the medical evidence of record. As noted above, at the April 2011 VA examination, rectal examination was normal and that the examination was not consistent with chronic rectal drainage. The examiner noted that the objective findings supported minimal to mild involvement only without objective need for use of absorbent pads continuously due to the service-connected condition. The March 2012 VA examiner noted that the Veteran's sphincter tone was normal. Thus, the Board finds that the Veteran's statement that he had fecal incontinence daily, that periodically he leaked stool and blood, that he changed his absorbable pad five to six times a day and kept the area clean, and that this had been going on for years, is inconsistent with other lay statements of record as well as the medical evidence of record. These inconsistencies undermine the Veteran's credibility and severely diminish the probative value of his statements. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). As such, the Board finds the medical evidence of record which demonstrate no objective evidence of fecal leakage outweighs the less probative statements of the Veteran that he suffers from fecal incontinence necessitating the wearing of a pad for an evaluation in excess of 10 percent pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7335 and 7332. The Board is aware that an extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected proctitis with rectal bleeding presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The Veteran has reported constant bleeding; however, the objective findings support minimal to mild involvement only without objective need for use of absorbent pads. The criteria in the Rating Schedule for disabilities most closely analogous to proctitis with rectal bleeding focus leakage and involuntary bowel movements. As discussed above, leakage/bleeding describes the Veteran's current disability picture. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. In the present case, there is no indication in the record that reasonably raised a claim of entitlement to a TDIU. For the foregoing reasons, the preponderance of the evidence is against the claim for a higher evaluation for chronic proctitis with rectal bleeding. The benefit-of-the-doubt doctrine is, therefore, not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Reduction in Rating The Veteran contends that a reduction in the evaluation assigned for his service-connected lumbar spine DJD and DDD was improper. The veteran's service-connected lumbar spine DJD and DDD has been evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5242, degenerative arthritis of the spine and intervertebral disc syndrome. The rating criteria for diseases and injuries of the spine provide that, in pertinent part, 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 following apply: 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 warrants a 10 percent rating. 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 warrants a 20 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2):(See also Plate V.) For VA compensation purposes, normal forward flexion of the 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. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3):In exceptional cases, an examiner may state that because of age, body 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):Round each range of motion measurement to the nearest five degrees. Note (5):For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6):Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Note(1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note(2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344 (2012). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, these considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. In this case a 40 percent disability evaluation for the Veteran's lumbar spine DJD and DDD had been in effect since January 28, 2005. Thus, at the time the evaluation was reduced to 20 percent, the rating had not been in effect for five years. Historically, the Veteran underwent VA examination in August 2007 at which time it was noted that the Veteran was reportedly told by a Decision Review Officer to take his medication as needed but no morphine or Percocet after 8 p.m. as his VA examination was at 10:00 a.m. the next morning. Active range of motion testing revealed flexion from zero to 10 degrees, extension from zero to 5 degrees, right and left lateral flexion from zero to 10 degrees, and right and left rotation from zero to 10 degrees. The examiner noted that the Veteran did not reliably cooperate with active range of motion testing. Passive range of motion testing revealed flexion from zero to 30 degrees, extension from zero to 15 degrees, right and left lateral flexion from zero to 20 degrees, and rotation from zero to 20 degrees. Right and left muscle spasms, guarding, and pain on motion were objectively observed. The examiner also conducted motor, sensory, and reflex examinations which demonstrated active movement against full resistance, normal sensation, and normal reflexes. The examiner noted that during the prior four years, the Veteran had missed three to four days of work but not on recommendation of a physician. Imaging study showed no significant changes from 2004. By rating decision dated in October 2007, a 40 percent evaluation was assigned effective January 28, 2005. The Veteran underwent VA examination in May 2009 at which time right and left guarding was objectively observed. Physical examination of the thoracolumbar spine revealed forward flexion from zero to 60 degrees, extension from zero to 20 degrees, right and left lateral flexion from zero to 20 degrees, and right and left lateral rotation from zero to 20 degrees. There was no additional loss of motion after three repetitions. Only guarding was objectively observed. The examiner also conducted motor, sensory, and reflex examinations which demonstrated active movement against full resistance, normal sensation, and normal reflexes. The Veteran noted a history of stiffness, spasms, and pain as well as flare-ups every one to two months but denied incapacitating episodes. The examiner noted the results of the imaging study in August 2007. This examination is as full and complete as the examination that resulted in the initial rating. By rating decision dated in July 2009, evaluation of lumbar spine DJD and DDD, was proposed to be reduced from 40 percent to 20 percent. By rating decision dated in October 2009, evaluation of lumbar spine DJD and DDD was reduced from 40 percent to 20 percent. Examination in April 2011 revealed flexion from 0-45 degrees. Findings other than the ranges of motion, pertinent findings were essentially similar to those reported in the May 2009 examination. Range of motion findings do not support greater than the 20 percent rating assigned. The Board notes that the RO has assigned a 40 percent disability rating for the Veteran's lumbar spine DJD and DDD effective March 7, 2012; thus, the issue on appeal has been characterized as whether the reduction of the evaluation for lumbar spine DJD and DDD from a 40-percent evaluation to a 20-percent evaluation from January 1, 2010 to March 6, 2012, was proper. As noted above, there are certain procedures that must be followed before the reduction in the evaluation of a service connected disability can be effectuated. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified of the contemplated action and furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). The record shows that the procedural requirements for a rating reduction were followed. In a July 2009 rating decision, the RO proposed to reduce the rating for the lumbar spine disability from 40 percent to 20 percent, and the Veteran was notified that he had 60 days to respond. The rating decision that decreased the evaluation to zero percent was not issued until October 2009. The effective date of the reduction was not until January 1, 2010, beyond the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. Therefore, the procedural requirements for a reduction were met. See 38 C.F.R. § 3.105(e). In determining whether the reduction was proper, the Board must focus upon 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 actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (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). The October 2007 rating decision, which granted a 40 percent evaluation, was based in no small part, on the August 2007 VA spine examination. The October 2009 rating decision which reduced the Veteran's evaluation from 40 percent to 20 percent was based on the May 2009 VA examination. As noted, this examination was as comprehensive and complete as the one that resulted in the assignment of the initial rating. The Board notes that the lack of muscle spasm, lack of pain with motion, significant improvement in range of motion demonstrated in 2009 are certainly indicative of improved symptoms from the 2007 examination to the 2009 examination as well as an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As noted above, in determining whether the reduction was proper, post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. The Veteran underwent VA examination in April 2010 at which time right and left guarding and tenderness were objectively observed. Physical examination of the thoracolumbar spine revealed forward flexion from zero to 55 degrees, extension from zero to 10 degrees, right lateral flexion from zero to 20 degrees, left lateral flexion from zero to 25 degrees, right lateral rotation from zero to 15 degrees, and left lateral rotation from zero to 15 degrees. There was no objective evidence of additional limitations after three repetitions of range of motion. The examiner also conducted motor, sensory, and reflex examinations which demonstrated active movement against full resistance, normal sensation, and normal reflexes except for bilateral knee jerk which showed hyperactive without clonus. The Veteran noted a history of spasms. The Veteran denied flare-ups and denied incapacitating episodes. The examiner noted that the imaging study was not repeated since August 2007 and that the Veteran denied any new injury/trauma since last VA examination. The Veteran underwent VA examination in April 2011 at which time no spasm, atrophy, guarding, pain with motion, tenderness, or weakness was objectively observed. Physical examination of the thoracolumbar spine revealed forward flexion from zero to 45 degrees, extension from zero to 5 degrees, right and left lateral flexion from zero to 10 degrees, right and left lateral rotation from zero to 10 degrees. There was no objective evidence of additional limitations after three repetitions of range of motion. The examiner also conducted motor, sensory, and reflex examinations which demonstrated active movement against full resistance, normal sensation except decreased sensation and dysesthesias to lateral thigh, and normal reflexes. The Veteran noted a history of spasms. The Veteran denied flare-ups and denied incapacitating episodes. The examiner noted that the imaging study was not repeated since August 2007 and that the Veteran denied any new injury/trauma since last VA examination. The examiner also noted that there was evidence of symptom magnification. The Board finds that the April 2010 and April 2011 VA examination reports support that the Veteran had a material improvement in his symptoms at the time of the rating reduction. As in 2009, the 2010 and 2011 reports reflect that there was no evidence of muscle spasm, no pain on motion, and significant increase in forward flexion (from 10 degrees in August 2007 to 60 degrees in May 2009, 55 degrees in April 2010, and 45 degrees in April 2011. The Board acknowledges that by April 2011, the Veteran's extension, lateral flexion, and rotation had diminished to the degrees noted in the August 2007 VA examination report; however, total range of motion was still greater in May 2009, April 2010, and April 2011 than in 2007. In a statement received in August 2009, the Veteran stated that the improvement shown on examination were the direct result of his daily medications. The Board notes that the August 2007 VA examiner noted that the Veteran was told not to take his pain medication after 8 p.m. the night before his examination. The Veteran also indicated that he did not know that his back was being evaluation in May 2009; thus, alluding to the fact that he took his pain medication that morning. In addition, at the January 2012 hearing, the Veteran stated that he took Morphine Sulfate, 15 milligrams, immediate release and that he believed he took 16 pills a day but that due to the fact that he had to drive to the examination, he could not take his medication. Thus, the Board must take into account the Veteran's argument that improvement shown in 2009 was solely due to his medication. The Board notes that a May 2007 hearing transcript is of record at which time the DRO told the Veteran, I certainly will strongly consider scheduling you for another examination to get a better assessment of the functional impairment from your low back. At that time, of course, if you're on medication at the time of that exam, then of course you will be examined as you are based on the medication. If you went off medication, then you would be examined without it. Obviously I'm not going to suggest that to you. That's a decision that you would have to make. ... In a statement received in March 2011, the Veteran's representative noted that the Veteran contends that his condition was reduced in severity due to prescribed medication and that at the time of the last compensation examination, the Veteran was taking this medication but that his attending physicians had since taken him off of the medication. At the April 2011 VA examination, however, the Veteran reported taking pain medication daily including morphine and Percocet. The use of medication prior to a VA examination does not negate the fact that the Veteran's back disability was shown, upon clinical examination in May 2009, to have improved and that a 40 percent evaluation was not warranted. As noted, this is confirmed by subsequent examinations. As noted above, the Veteran would be entitled to a 40 percent evaluation if the evidence demonstrated that he had forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence of record at the time of the May 2009, April 2010, and April 2011 VA examination weighs against such a finding. As noted above, the Veteran demonstrated flexion to 60 degrees in May 2009, 55 degrees in April 2010, and 45 degrees in April 2011 with no objective findings of additional loss of motion after repetition. Thus, the record reflects that the Veteran's service-connected lumbar spine disability improved after the October 2007 rating. The Board has considered the Veteran's entire history and finds that the evidence reflects an actual material improvement in the Veteran's lumbar spine disability whereas a 40 percent disability evaluation was no longer warranted in light of the May 2009 VA examination. In November 2009, VA received a statement from the Veteran's representative that noted that he was not queried regarding any neurological symptoms associated with his DDD. The Board notes, however, that the May 2009 VA examiner noted that the Veteran reported daily discomfort but no leg weakness, tingling, or numbness. In addition, the Veteran reported that he was able to work full time doing heavy labor. The examiner noted that there were no radicular symptoms on examination and minimal changes seen on MRI and plain films. As such, the Board finds that the May 2009 examination report that reflected a change was based on thorough examination. Faust v. West, 13 Vet. App. 342 (2000). The evidence demonstrates that reduction was proper based on the May 2009 VA examination which noted the Veteran demonstrated flexion to 60 degrees, warranting less than a 40 percent evaluation according to 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. ORDER Entitlement to service connection for radiculopathy of the right lower extremity as secondary to service-connected lumbar spine is denied. Entitlement to an evaluation in excess of 10 percent for chronic proctitis with rectal bleeding is denied. The reduction of the evaluation for lumbar spine DJD and DDD from a 40-percent evaluation to a 20-percent evaluation from January 1, 2010 to March 6, 2012, was proper; and the appeal is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs