Citation Nr: 1333963 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-13 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether the reduction of the 40 percent rating for degenerative disc disease of L4-5 and L5-S1, effective November 1, 2009, was proper. 2. Entitlement to disability ratings in excess of 10 percent effective November 1, 2009, and in excess of 20 percent effective December 10, 2012, for degenerative disc disease of L4-5 and L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which reduced the assigned disability rating for the Veteran's degenerative disc disease of L4-L5 and L5-S1 from 40 percent to 10 percent, effective November 1, 2009. Subsequently, a March 2013 rating decision assigned a 20 percent disability rating effective December 10, 2012. This did not satisfy the Veteran's appeal. The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDINGS OF FACT 1. A 40 percent rating was assigned for degenerative disc disease of L4-L5 and L5-S1, effective April 20, 2006. 2. In a March 2009 rating decision, the RO proposed to reduce the rating for the low back disability to 10 percent; in a March 2009 letter, the Veteran was informed of the proposed reduction, his option for a personal hearing, and that he would be afforded 60 days in which to submit additional evidence. 3. In an August 2009 rating decision, the 40 percent rating was reduced to 10 percent, effective November 1, 2009. 4. Evidence of record at the time of the August 2009 rating decision showed that the low back disability had improved; forward flexion was no longer limited to 30 degrees or less. 5. The evidence of record in August 2009 and subsequently shows that the low back disability has been manifested by limitation of motion; forward flexion has been limited to 60 degrees or less but not to 30 degrees or less. 6. The low back disability has not been manifested by ankylosis or incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. The criteria for reducing the 40 percent disability rating for the Veteran's degenerative disc disease of L4-L5 and L5-S1 to 20 percent, effective November 1, 2009, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for a disability rating in excess of 20 percent for degenerative disc disease of L4-5 and L5-S1 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Requirements The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, provide notice concerning the evidence required to substantiate the claim, and provide notice of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In the present case the appellant is not a claimant. Specifically, no claim was filed; rather, the rating for the Veteran's service-connected back disability was reduced as the result of the findings on a future examination scheduled at the time service connection was granted. There are specific notice requirements, found in 38 C.F.R. § 3.105(e)-(i), which are applicable to reductions in ratings. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating 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 expires. 38 C.F.R. § 3.105(e). When the procedures of 38 C.F.R. § 3.105(e) are applicable, VA must comply with those provisions rather than the notice and duty provisions in the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012). See, e.g., Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations). In March 2009, the RO prepared a rating decision which proposed to reduce the disability rating of the service-connected degenerative disc disease of L4-L5 and L5-S1 from 40 percent disability rating to a 10 percent disability rating. The Veteran and his representative were provided a copy of the notice letter and a copy of the rating decision proposing reduction. In the notice letter, he was informed of his option for a personal hearing and that he would be afforded 60 days in which to submit additional evidence. Later in March 2009, the Veteran submitted a written statement which alleged that the February 2009 VA Compensation and Pension examination was inadequate and asserted that a reduction in disability rating was not warranted. In August 2009, the RO issued a rating decision which reduced the Veteran's disability rating for his service-connected degenerative disc disease from 40 percent disability rating to a 10 percent disability rating effective November 1, 2009. The notice requirements of 38 C.F.R. § 3.105(e) have been complied with; there is no deficiency with respect to the notice provided to the Veteran, the period of time allotted to him to reply to the proposed reduction, or the period of time between the decision effecting the reduction and the effective date of the reduction. With respect to assistance, the Veteran has been provided two Compensation and Pension examinations and VA has obtained the private records which the Veteran has indicated exist. II. Factual Background. In April 2006, the Veteran filed a petition to reopen his previously denied claim for service connection for a low back disability. In conjunction with this petition, he submitted a medical opinion from his private physician linking the current low back disability, degenerative disc disease at L4-5, and L5-S1, to active service. The diagnosis was supported by a recent Magnetic Resonance Imaging (MRI) report. In December 2006 a VA Compensation and Pension examination of the Veteran was conducted. The Veteran reported a history of a "bulging disk" dating back 21 years. He reported symptoms of a very stiff lower back area, and weakness in his left leg with giving out with walking, numbness, and a needle-like pain. He reported incapacitating episodes "as often as 7 times per month, which last for 5 days. Over the past year he had 365 incidents of incapacitation for a total of 10 days." He reported functional impairment of difficulty standing with his left leg going numb. Physical examination revealed posture and gait were within normal limits; he did not use any assistive device for ambulation. There was evidence of radiating pain on movement of the right leg and hip. Muscle spasm was present. Tenderness of the lumbosacral area was elicited along with positive results on straight leg raising testing on both the right and the left. There was no ankylosis of the spine. Range of motion testing of the thoracolumbar spine revealed: forward flexion to 30 degrees; extension to 10 degrees; right lateral flexion to 15 degrees; left lateral flexion to 20 degrees; right rotation to 15 degrees; and left rotation to 20 degrees. The examiner stated that the joint function of the spine is additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance, and incoordination with pain having the major functional impact. The above additionally limited the joint function by 0 degrees. Service connection for degenerative disc disease was granted at a 40 percent disability rating effective April 20, 2006. A separate 10 percent disability rating was also assigned for radiculopathy involving the left lower extremity. The January 2007 rating decision, and the letter notifying the Veteran of service connection, both indicated that a future examination would be scheduled in January 2009 to ascertain the level of severity of the service-connected low back disability at that point in time. In February 2009, a VA Compensation and Pension examination of the Veteran was conducted. The Veteran reported a history of a degenerative disc disease dating back to service in 1988. He reported symptoms of: back pain, stiffness, numbness, and pain radiating down his left leg. He indicated that these symptoms were relieved by rest and pain medication. He indicated that his low back pain did not result in any incapacitation. He reported an inability to run, play sports, sit for long periods of time, along with difficulty bending and reaching. Again, physical examination revealed posture and gait were within normal limits; he did not use any assistive device for ambulation. Muscle spasm was absent. Tenderness of the lumbosacral area was elicited along with positive results on straight leg raising testing on the left; straight leg raising testing on the right was negative. There was no ankylosis of the spine. Range of motion testing of the thoracolumbar spine revealed: forward flexion to 90 degrees; extension to 30 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right rotation to 30 degrees; and left rotation to 30 degrees. Neurologic testing revealed decreased sensation and weakness of the left lower extremity. The examiner stated that the "joint function of the spine is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use." In September 2009, the Veteran submitted a copy of a letter from his private physician, Dr. M. M. This letter states that the Veteran was being treated for chronic low back pain with "analgesics, oral steroid pack, therapeutic activities, and multiple epidural steroid injections." The physician stated that the Veteran's, "range of motion is poor. He has to use a cane for ambulatory assistance. He is neurologically intact." The findings in this letter are not supported by the contemporaneous medical records subsequently obtained from Dr. M. M. which are referenced below. These records show that the Veteran was found to have full range of motion of the lumbar spine, and do not show that the Veteran required a cane to ambulate. In November 2009, VA obtained copies of treatment records from Dr. M. M., the same private physician who submitted the September 2009 letter. These records are dated from 2006 to 2009 and reveal treatment for the Veteran's chronic low back pain. These records reveal that the Veteran had complaints of low back pain along with pain radiating into his left leg and required periodic epidural steroid injections at L4-5 and L5-S1 to control his symptoms of pain. However, these records also reveal different findings than the physician asserted were present in the September 2009 letter. For example, an April 2009 entry notes full range of motion of all extremities with normal strength and intact sensation of the lower extremities. Examination revealed that the Veteran had "full range of motion of the lumbar spine with flexion, extension, side bending, and rotation without reproduction of pain." Straight leg raising testing was negative, and there was no paraspinal muscle spasm or tenderness of the sacroiliac joint. The Veteran could stand, heel walk, and toe walk without evidence of weakness, instability, or abnormality of gait. The diagnosis was degenerative disc disease, and the physician recommend continued injections every 2 to 3 weeks if symptoms of low back pain persisted. A treatment record dated in September 2009, a mere two days before the physician's letter noted above, indicates that the Veteran was seen for follow-up after an epidural injection 12 days earlier. The Veteran's pain had resolved and he had some left leg numbness which was resolving. Physical examination revealed full range of motion of the thoracic and lumbar spine as well as the lower extremities. The physician indicated that the Veteran was doing well and recommended injections to control pain every 4 to 6 months as needed. The physician also indicated that surgical treatment with laminectomy at L4-5 and L5-S1 was being considered. In December 2012, the most recent VA Compensation and Pension examination of the Veteran was conducted. The examination report indicates a diagnosis of, "degenerative disc disease L4-5 and L5-S1, with intervertebral disc syndrome sciatic nerve left." The Veteran reported symptoms of low back pain and tingling and numbness in his left leg. He reported treatment with epidural injections and physical therapy. He reported flare-ups of pain which lasted for several hours. Range of motion testing of the thoracolumbar spine revealed: forward flexion to 35 degrees with pain; extension to 5 degrees with pain; right and left lateral flexion to 20 degrees with pain; and right and left rotation to 20 degrees with pain. Pain was noted to be present at the end point of each range of motion. Repetitive motion testing did not reveal any additional limitation of range of motion. The functional impairment present was noted to be "less movement than normal." Tenderness to palpation of the lumbar spine was present, but there was no evidence of muscle spasm or abnormality of gait. No incapacitating episodes were noted, but the examiner did indicate that the Veteran used a cane to ambulate. Mild numbness of the left leg was found on neurologic testing. The examiner indicated that the Veteran's service-connected low back disability did not impact the Veteran ability to work. III. Legal Criteria 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. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental 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. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which 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. 38 C.F.R. § 3.344 (2005). A 40 percent disability rating was assigned for the Veteran's low back disability, effective April 20, 2006. The disability rating was reduced from 40 percent to 10 percent, effective November 1, 2009, a period of less than 5 years. Accordingly, the provisions of 38 C.F.R. § 3.344(a) are not applicable. The criteria for rating disabilities of the spine are found under a general rating formula for all disabilities, diseases, and injuries of the spine under Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The disability ratings for the spine are assigned 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 as follows: For unfavorable ankylosis of the entire spine (100 percent); For unfavorable ankylosis of the entire thoracolumbar spine (50 percent); For forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); and For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height (10 percent). 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine (2013). When evaluating diseases and injuries of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). 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 as noted. 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 , General Rating Formula for Diseases and Injuries of the Spine, Note (3). Range of motion measurements are to be rounded off to the nearest five degrees. 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (4). 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 , General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to 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 , General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2010). As noted above, Diagnostic Code 5243 is used to rate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 10 percent rating contemplates incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a , Diagnostic Code 5243, formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is "a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). IV. Analysis While the report of the December 2006 VA Compensation and Pension examination notes that the Veteran reported incidents of incapacitation due to back pain for a total of 10 days in a one year period, the evidence does not show that the Veteran required bed rest prescribed by a physician, nor does it show that he lost any time at work due to his claimed incapacitation. The other evidence of record does not reveal any periods of incapacitation resulting from the Veteran's service-connected degenerative disc disease. Accordingly, rating the service-connected degenerative disc disease under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. Service connection for the Veteran's lumbar degenerative disc disease was based upon the findings of the December 2006 VA Compensation and Pension examination, which revealed that he met the criteria for the assignment of a 40 percent disability rating. Specifically, the finding of limitation of forward flexion of the Veteran's thoracolumbar spine to 30 degrees warranted the assignment of the 40 percent rating. The Veteran's 40 percent disability rating for degenerative disc disease was reduced based upon the findings on a VA Compensation and Pension examination conducted in February 2009. The range of motion of the thoracolumbar spine was found to be normal on this examination. The Veteran has asserted that this examination is inadequate. He claims that no physical examination of his spine or range of motion testing was conducted. However, the findings of normal range of motion of the spine are actually supported by the findings on the private treatment reports dated from 2006 to 2009, which also reveal normal ranges of motion of the lumbar spine. Therefore, the Board concludes that the evidence of record at the time of the decision reducing the rating established that the disability had improved to the extent that a disability rating in excess of 20 percent was no longer warranted. The Board notes that the additional VA examination of the Veteran in December 2012 showed that forward flexion was limited to 35 degrees, a finding that warrants a 20 percent rating rather than a 40 percent rating. While the private treatment records dated from 2006 to 2009 reveal essentially normal range of motion of the thoracolumbar spine, they reveal that this was obtained as a result of frequent medical treatment with epidural injections. Based upon a review of the need for regular epidural injections and the documented ranges of motion on the 2012 Compensation and Pension examination, the Board finds that the disability warrants a rating of 20 percent, but not higher, from November 1, 2009. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected low back disability are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not in order. ORDER The Board having determined that the reduction of the 40 percent rating for degenerative disc disease of L4-5 and L5-S1 was proper, the benefit sought on appeal is denied to this extent. The Board having determined that the degenerative disc disease of L4-5 and L5-S1 warrants a 20 percent rating, but not higher, effective November 1, 2009, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs