Citation Nr: 1340513	
Decision Date: 12/09/13    Archive Date: 12/20/13

DOCKET NO.  08-38 873	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Whether the reduction in the disability rating for low back strain from 40 percent to 20 percent was proper.  

2. Entitlement to a rating higher than 20 percent for low back strain.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel

INTRODUCTION

The Veteran had active service from April 1970 to April 1972.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 RO rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas.  In that decision, the RO decreased the rating for low back strain from 40 percent to 20 percent effective May 1, 2008.  

As explained further below, a waiver of Agency of Original Jurisdiction (AOJ) adjudication was provided for evidence that was received after the last supplemental statement of the case (SSOC).  

Claims of service connection for the residuals of Agent Orange, a bilateral arm disability, and a disability manifested by shortness of breath were raised in a March 2013 report of contact form and a September 2013 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Also, an April 2008 Board decision referred the issue of whether a timely notice of disagreement was received for an August 2006 rating decision in which the RO denied a claim for a compensable rating for the service-connected residuals of a fractured right fifth metacarpal.  The Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  

The issue of entitlement to a rating higher than 20 percent for low back strain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDINGS OF FACT

1. A rating decision dated in February 2008 reduced the evaluation for service-connected low back strain from 40 percent to 20 percent, effective May 1, 2008; the 40 percent evaluation was in effect for less than five years.  

2. The medical evidence at the time of the reduction demonstrated improvement in the low back strain.  


CONCLUSION OF LAW

The reduction in the rating assigned for low back strain, from 40 percent to 20 percent, effective May, 1, 2008, was proper.  38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), (h); 3.344(c); 4.1, 4.71a, Diagnostic Code (DC) 5237 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and to Assist

VA has a duty to provide certain notice under the Veterans Claims Assistance Act of 2000 as codified at 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013).  Here, although the Veteran has filed a claim for an increased rating, the claim adjudicated on appeal is only the issue of whether the reduction in the disability rating for low back strain from 40 percent to 20 percent was proper.  

In September 2007, the RO notified the Veteran of: information and evidence necessary to substantiate the increased rating claim; information and evidence that VA would seek to provide; and information and evidence that the claimant was expected to provide.  Also in that letter, the RO notified the Veteran of the process by which effective dates and disability ratings are established, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The United States Court for Veterans Appeals (Court) interpreted the VCAA as imposing additional notice requirements in an increased rating claim.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  .  

The September 2007 notice included the remaining elements of notice required by Vazquez-Flores.  

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013).  VA medical records have been associated with the file.  The Veteran received several VA examinations regarding his spine, including in September 2007, directly prior to the reduction.  

In November 2013, the Veteran's vocational rehabilitation folder was associated with the file.  AOJ review of this folder was waived by the Veteran's representative in December 2013.  

Where the reduction in evaluation of a service-connected disability or employability status 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 will be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(e) (2013).  The beneficiary will be notified at his or her latest address of record of the contemplated action, furnished detailed reasons for the reduction, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  Id.  

Unless otherwise provided in paragraph 38 C.F.R. § 3.105(i) (2011) (e.g., the Veteran requests a predetermination hearing), 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.  See also, 38 U.S.C.A. § 5112(b)(6) (West 2002).  

Here, in a November 2007 decision and letter, the RO notified the Veteran of the proposed reduction in the rating assigned to his service-connected low back strain.  In the letter, the RO informed the Veteran of the type of evidence that would prevent such a reduction and that he could request a personal hearing.  Following this notice, the RO, by a February 2008 rating action, formally reduced the evaluation of his service-connected low back strain from 40 percent to 20 percent, effective on May 1, 2008.  The Board finds that the notice requirements for reduction in evaluation of compensation in sections 3.105(e) and (i) were satisfied.  The Board finds that the duty to notify and the procedural requirements of 38 C.F.R. § 3.105(e) have been met.  

Additional procedural precautions, as set forth in 38 C.F.R. § 3.344(a) and (b), must be followed where a disability rating has been in place for five years or more.  These provisions pertain to stabilization of disability ratings and are designed to ensure that sustained improvement has been demonstrated before a rating is reduced.  38 C.F.R. § 3.344(b)-(c); see Brown v. Brown, 5 Vet. App. 413, 419-21 (1993).  The directives 38 C.F.R. § 3.344(a) and (b) of are not applicable here because the 40 percent rating had only been in effect from May 25, 2006 to May 1, 2008 (less than five years).  

Legal Criteria: Reductions and Rating the Spine

For disabilities that have been in place less than five years, § 3.344(c) applies:

Disabilities which are likely to improve.  The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve.  Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  Each service-connected disability is rated on the basis of specific criteria identified by DCs.  38 C.F.R. § 4.27 (2013).  

Back disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine for DCs 5235-5243 provides for the rating of disabilities of the spine.  38 C.F.R. § 4.71a.  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 relevant parts of the formula are as follows: 

Unfavorable ankylosis of the entire spine (100 percent); 

Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); 

Forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); and 

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 gaiter abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent).  
General Rating Formula for Diseases and Injuries of the Spine; 38 C.F.R. § 4.71a.  

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.  General Rating Formula for Diseases and Injuries of the Spine, Note (2).  

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2013).

To warrant additional compensation beyond the minimum compensable level "pain must affect some aspect of the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned.  This is because "pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss."  Mitchell v. Shinseki, 25 Vet App 32, 43 (2011).  

Intervertebral Disc Syndrome (IVDS) is evaluated 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.  38 C.F.R. § 4.71a, DC 5243 (2013).  Note (1) of 38 C.F.R. § 4.71a, DC 5243 states that 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.  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. §§ 4.1 and 4.2 (2013).  Also, the entire rating period is considered for the possibility of staged ratings.  Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease, disability, and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2013).  

At no point has the Veteran been diagnosed as haveing IVDS or prescribed bed rest by a physician.  38 C.F.R. § 4.71a, DC 5243.  The Veteran's back disability is; therefore rated under the General Formula.  Id.  

Evidence

The RO granted a 40 percent rating for the low back disability in August 2006, based on the results of a July 2006 VA examination.  That examination had shown forward flexion of the thoracolumbar spine was limited to 30 degrees and by another 10 degrees due to functional factors.  A neurologic examination was essentially normal.

The Veteran contended in a July 2007 claim for increased rating that he was having more problems picking up objects because of his back condition.  He worked for a tree trimming company and his disability was negatively affecting his employment.  

A July 2007 VA record showed he was referred to physical therapy for a transcutaneous electrical nerve stimulation unit (TENS unit).  A July 2007 VA neurology record noted that his pain appeared to be myofascial; he was noted to be working as a tree trimmer but was looking for another job.  

In a September 2007 statement G.H. states that the Veteran was sick and unable to work.  He needed a lot of medication.  He complained about back pain.  He was unable to pick up logs, pull branches, climb or cut tree limbs.  

At the September 2007 VA examination, the Veteran complained of low back pain without radiation that was constant, pressured pain.  He took medication that helped and had no side effects.  As for flare ups, he had random pain daily without a cause that would last five minutes and ease with medication.  There was no additional limitation of motion with flare ups.  He did not have associated features or symptoms like numbness, weight loss, bowel/bladder, etc.).  He did not use assistive devices and could walk for one mile.  

He asserted he could not climb trees, do heavy lifting or cut down trunks in his occupation as a tree trimmer.  

Range of motion was as follows: 

Forward flexion
0-60 Degrees
Extension
0-20 Degrees
Right lateral flexion
0-15 Degrees
Left lateral flexion
0-10 Degrees
Right lateral rotation
0-20 Degrees
Left lateral rotation
0-20 Degrees

The Veteran noted pain at the end of all ranges of motion with no pain from 0 to the end of the range of motion.  There was no change in motion upon repeated and resisted testing of the spine five times and no additional limitation of motion was noted.  There were objective findings of tenderness in the upper lumbar muscles without spasm.  There was no spasm or guarding but tenderness was noted with the preserved spinal contour and a normal gait.  There were no postural or muscle abnormalities of the back.  The sensory and motor examinations were normal.  Reflexes were 2+/4 bilaterally.  The MRI showed a disc bulge at L1-2 through L3-4 with no protrusion or encroachment at any level.  There was mild bilateral facet degeneration was seen at L3-4 through L5-S1 levels.  The diagnosis was degenerative disc disease and degenerative joint disease of the lumbosacral spine.  

VA treatment records show the Veteran complained of back pain in March 2007.  In November 2007, a VA pharmacy record noted he requested increased medication, however, at a VA primary care appointment the same month his back pain was noted to be stable.  In August 2008, an MRI of the thoracic spine was interpreted as normal.  In April 2009, a VA primary care record noted the Veteran did not go to vocational rehabilitation but was still working trimming trees.  At the VA psychiatric examination in June 2009, the examiner noted the Veteran enjoyed activities such as fishing and dancing.  Starting in July 2009 he began to be evaluated by VA neurology for an unrelated possible transient ischemic attack.  

In a March 2008 statement, the Veteran asserted that he was in pain when he moved forward at the examination.  He stated his wife would get mad because she stated that he acted like an old man.  His doctors encouraged him to get a new job but it was not easy.  

His March 2008 application for vocational rehabilitation noted that he was a tree trimmer.  A May 2008 letter from VA to the Veteran noted his vocational rehabilitation was stopped because he never completed evaluation (He applied several times in 2005, 2007, and 2008 but he never followed through).  In his December 2008 appeal, the Veteran stated he was forced to bend at his last examination and to move his whole back.  He needed to take medications and rest a lot to function.  

In November 2009, the Veteran received another VA examination.  His back disability was described as having a progressive course.  He had sharp pain with no distribution and chronic, daily duration.  The pain was described as moderately severe.  There were no incapacitating episodes.  Medication was helping somewhat with no side effects.  Flare ups occur with prolonged sitting, standing, and ambulation; he took rest breaks.  He did not have associated features or fatigue, spasms, weakness, decreased motion, numbness, paresthesias, leg or foot weakness, or bladder/bowel complaints.  He was not using assistive devices, to include a cane or crutches.  He could walk up to one mile.  The Veteran was not unsteady and did not have a history of falls.  The Veteran worked as a foreman and missed about 6 to 10 days of work this year.  He was self-sufficient with activities of daily living.  

The spine was symmetrical, his posture was slightly kyphotic and his gait was slightly antalgic.  Range of motion was as follows: 

Forward flexion
0-45 Degrees
Extension
0-10 Degrees
Right lateral flexion
0-15 Degrees
Left lateral flexion
0-15 Degrees
Right lateral rotation
0-15 Degrees
Left lateral rotation
0-15 Degrees

The examiner noted that end-range pain was in all directions, "more with forward flexion."  There was tenderness in the lumbosacral area with bilateral paralumbar muscle guarding and no atrophy.  There were no spasms or ankylosis.  A sensory examination was normal and a motor examination was fair to good.  Reflexes were symmetrical.  There was no additional limitation of motion with repeated activities three times and no change in the range of motion.  There was no IVDS.  The diagnosis was chronic moderately severe lumbosacral strain with MRI findings of circumferential annular bulge from L1-2 and L3-4 with no disk protrusion or stenosis.  There was bilateral facet degeneration at L3-4 and L5-S1.  

In January 2010, the Veteran asserted his back had worsened.  

Analysis

As noted above, the propriety of the rating reduction turns on whether there was a reexamination disclosing improvement in the disaiblity.  

In December 2013, the Veteran's representative argued to the Board that no "actual material improvement" had been demonstrated, the Veteran had an altered gait and the condition was not improved under the ordinary conditions of life and work.  As a result the 40 percent rating should be restored even if the range of motion had improved.  However, as the rating was in place for less than five years such findings regarding material improvement under the ordinary conditions of life and work are not necessary.  38 C.F.R. § 3.344(c) (2013).  

The July 2007 VA examination clearly shows substantial improvement, in that the range of forward flextion was to 60 degrees whereas it had previously been 30 degrees or less.  Further, the 2007 VA examination showed the Veteran's gait was normal.

The Veteran has argued that the examination report was not an accurate measurement of his range of motion because the examiner forced him to move while he was in pain.  Pain; however, without actual additional limitation of motion could not serve as a basis for finding additional limitation of motion beyond that reported by the examiner.  Mitchell.  The examiner did note the points in the ranges of motion when the Veteran reported pain, , but found that pain did not cause additional limitation of motion.  The Veteran has not denied that he was able to achieve the reported ranges of motion, although experiencing pain.

G.H.'s September 2007 statement does not report the Veteran's ranges of motion The evidence directly contradicts G.H. report that the Veteran could no longer work as a tree trimmer; a July 2007 VA psychiatric examination shows he was working in that capacity, as do many other subsequent records (see December 2008 VA primary care record, April 2009 VA primary care record, June 2009 VA psychiatric examination report and January 2011 doctor's note for work).  Statements asserting the Veteran cannot work are assigned little weight.  

The July 2007 examination does appear to show some neurologic impairment that was not reported on the 2006 examination.  The Veteran's entitlement to separate ratings for this impairment is addressed in the Board remand below.

The Board finds the evidence shows that the reduction in February 2008 was proper in that it was based on re-examination showing improvement.


ORDER

The reduction of the rating from 40 percent to 20 percent for the service-connected low back strain, effective on May 1, 2008 was proper; the appeal is to this extent denied.  


REMAND

The Board finds a new examination is warranted because the Veteran asserted in January 2010 that his back and related symptoms had worsened.  Further, an August 2013 report of contact is unclear as to whether records of treatment in 2013 are available for the Veteran at a private facility.  

As noted, the most recnet VA examinations have documented neurologic impairment in the lower extremities.  The question of separate ratings for this impairment should be considered by an AOJ in the first instance.

Accordingly, the case is REMANDED for the following action: 

1.  Review the Veteran's March 2013 authorization and consent form for release of records from a private facility; ensure 38 C.F.R. § 3.159(c)(1) is followed in requesting these records.  

2.  After completing the above development, schedule the Veteran for a new VA examination to evaluate the severity of his back disability.  The claims folder, and any relevant records in Virtual VA, should be made available for the examiner to review.  

An answer to the following questions should be provided.  
* Is there any additional range of motion lost due to flare ups?  If so, please estimate this amount, expressed in degrees of lost motion.  
* Is there any additional range of motion lost due to any other noted functional impairment (i.e. weakened movement, excess fatigability, incoordination, or pain)?  If so, please estimate this amount, expressed in degrees of lost motion.  
* Is there any neurological disability related to the service-connected lumbar spine disability?  If so, document the impairment and its severity.

If this information cannot be provided without resorting to speculation, the examiner should give a reason why the needed information cannot be provided.  

3.  Adjudicate whether separate ratings are warranted for neurologic impairment associated with the Veteran's back disability.

4.  If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case, including consideration of separate ratings for neurologic impairment, and return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).  




______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs