Citation Nr: 1416760 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 11-04 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether a reduction from 40 percent to 20 percent for residuals of fracture of lumbar vertebra was proper. WITNESSES AT HEARING ON APPEAL Appellant and his Wife ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1955 to January 1976. He died in February 2011. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that decreased the Veteran's disability rating for residuals of fracture of lumbar vertebra from 40 percent to 20 percent disabling, effective January 1, 2010. In October 2009, the Veteran requested a hearing before Decision Review Officer (DRO) at the RO. The Veteran and his wife testified before a DRO at an April 2010 hearing at the RO. A hearing transcript is of record. At the time of the Veteran's death, he had initiated an appeal as to the claim listed on the first page of this decision. Following the Veteran's death, the appellant filed an application for dependency and indemnity compensation, death pension or accrued benefits. The law provides that, upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A (West 2002). In this case, the appellant's claim was accepted by the RO as a request for substitution as the claimant in the claim pending at the time of the Veteran's death and the appellant's request for substitution was granted. See RO Memorandum re: Substitution, May 2012; see also Supplement Statement of the Case, June 2013. A review of the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In an October 2009 rating decision, the RO decreased the rating for the Veteran's residuals of fracture of lumbar vertebra from 40 percent to 20 percent disabling, effective January 1, 2010. 2. The 40 percent rating for the Veteran's residuals of fracture of lumbar vertebra had been in effect for less than five years at the time it was reduced to a 20 percent rating. 3. Reexamination disclosing improvement of the Veteran's fracture of lumbar vertebra was shown by the evidence of record at the time of the rating decision. 4. As of January 1, 2010, the Veteran's residuals of fracture of lumbar vertebra were manifest by flexion of the thoracolumbar spine not less than 60 degrees. 5. The Veteran received proper notice of the proposed rating reduction. CONCLUSION OF LAW The reduction of the rating for residuals of fracture of lumbar vertebra from 40 percent to 20 percent, effective January 1, 2010, was proper. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.105(a) & (e), 3.159, 4.71a, Diagnostic Code (DC) 5235 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Generally, when a reduction in the rating of a service-connected disability is contemplated 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 must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2013). In the advance written notice, the beneficiary must be informed of the right for a pre-determination hearing, and if a timely request for such a hearing is received within 30 days, benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1) (2013). Where there is no reduction in the amount of compensation payable to a beneficiary, the provisions of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91 (1991), 57 Fed. Reg. 2316 (1992). The record reflects that in an August 2009 letter, the Veteran was notified of a proposal to reduce the disability rating assigned for his residuals of fracture of lumbar vertebra from 40 percent to 20 percent disabling. He was additionally notified that he had 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level, and that if he did not respond within those 60 days, his disability rating would be reduced. In October 2009, the RO decreased the rating accordingly. The record reflects that the Veteran did not respond to the August 2009 letter until after the October 2009 rating decision, at which time he requested a hearing. The Veteran's request for a hearing was received 30 days after his notification of reduction and he was subsequently afforded a hearing before a DRO in April 2010. Thus, the Board finds that the provisions of 38 C.F.R. § 3.105(e) are applicable and were met; therefore, the reduction was procedurally proper. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. In certain rating reduction cases, VA benefits recipients are afforded greater protections. 38 C.F.R. § 3.344(a),(b) (2013). Those regulations provide that 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, the provisions of 38 C.F.R. § 3.344(c) specify that those provisions are only applicable for ratings which have continued for periods of five years or more at the same level, and do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in those disabilities will warrant a reduction in rating. Similar protections are afforded to veterans who have been awarded a total rating based on unemployability. 38 C.F.R. § 3.343 (2013). In this case, however, the 40 percent disability rating for the Veteran's residuals of fracture of lumbar vertebra was in effect for less than five years, from April 18, 2008 to November 24, 2008 and from January 1, 2009 to December 21, 2009. Therefore, the provisions of 38 C.F.R. § 3.44(a) and 38 C.F.R. § 3.344(b) are not applicable. Accordingly, an examination disclosing improvement will warrant a reduction in the rating. 38 C.F.R. § 3.344(c) (2013). Therefore, the question is whether an examination had shown an improvement warranting a reduction in the rating. In considering the propriety of a reduction, the Board must focus on the 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 demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Board will now consider the propriety of the rating reduction. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's residuals of fracture of lumbar vertebra are rated under DC 5235. Since September 23, 2003, DCs 5235 to 5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. Under the General Rating Formula, a 10 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5235. A 20 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait; or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent evaluation is for application with forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is for application when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine. Id. The Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Board notes that under 38 C.F.R. § 4.40, the rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Based on the evidence of record, the Board concludes that a rating reduction from 40 percent to 20 percent for residuals of fracture of lumbar vertebra, effective January 1, 2010, was warranted. As of January 1, 2010, the pertinent evidence of record shows the Veteran's thoracolumbar spine range of motion approximated forward flexion of at least 50 degrees and that he suffered reversed lordosis. The evidence of record fails to show the Veteran's thoracolumbar spine range of motion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, which would warrant a continued rating of 40 percent. The Veteran was afforded a VA thoracolumbar spine examination in May 2009. The diagnosis was degenerative lumbar spine disease. The examiner noted that the Veteran suffers from daily flare-ups due to his back condition that result in increased pain. The Veteran uses a cane to assist with ambulation, but the VA examiner stated the cane was needed for the Veteran's unsteady left leg, not his back condition. The Veteran's gait, with use of a cane, was found to be normal. The Veteran had an abnormal posture and abnormal curvature of the spine due to loss of lumbar lordosis. There was no ankylosis of the thoracolumbar spine. Upon range of motion testing, the Veteran was able to forward flex his thoracolumbar spine to 60 degrees, with no additional loss of range of motion upon repetitive testing. The Veteran experienced painful motion, tenderness and abnormal movement upon range of motion testing. The Veteran was found to have reversed lordosis. Overall, the Veteran's thoracolumbar spine condition created moderate interference with his activities of daily living. A September 2009 letter from the Veteran's private physician, Dr. T.M.S., states that due to the Veteran's spine problems, he is permanently disabled. The Veteran has suffered from lumbar and cervical degenerative disc disease, post laminectomy syndrome, radiculopathy and osteoarthritis of various joints without great relief or improved function. Following the Veteran's November 2008 microscopic lumbar discectomy, the doctor has had to increase the Veteran's pain medications to better control his pain and increase his quality of life. In Dr. T.M.S.'s opinion, the Veteran's disability status has not changed or improved with surgery. In a September 2009 statement, the Veteran claims that he has not felt any improvement in his back after having his 2008 operation. Simple chores, such as bending over the sink to brush his teeth cause severe pain, which requires him to rest. He utilizes a back brace, pain rubs, heat and ice to help with his back pain. He also sees a chiropractor. Overall, the Veteran stated that his disability is now worse. During the Veteran's April 2010 DRO hearing, he testified that he experiences pain in his back constantly of an 8 on a scale of 1 to 10. The pain starts when he bends over and relief is possible by lying down. He is able to walk a block before having to sit down, but needs to use his cane constantly. The Veteran is unable to do any yard work or household chores due to his back condition. He also does not drive as he is worried about having a back spasm while driving. The Veteran testified that he wears a back brace. The Veteran was provided a second VA thoracolumbar spine examination in June 2010. The diagnosis was facture of the lumbar spine, status-post laminectomy, with moderately severe degenerative disease. The Veteran reported severe weekly flare-ups of low back pain lasting hours that are caused by movement and alleviated by lying down to rest and taking hydrocodone. The Veteran stated he was unable to walk more than a few yards and utilizes a cane and a wheelchair. Upon physical examination, the Veteran's posture, head position and gait were normal. He was not found to have any abnormal spine curvatures. However, there was pain with motion and tenderness on both the left and right thoracolumbar sacrospinalis. Upon range of motion testing, the Veteran was able to forward flex his thoracolumbar spine to 50 degrees, with objective evidence of pain on active range of motion. There was no additional limitation of motion after three repetitions of range of motion. Muscle tone was normal and there was no muscle atrophy. As a result of the Veteran's back condition, he was found to have decreased mobility, pain, and problems with lifting and carrying. The Board finds that the reduction from 40 percent to 20 percent for the Veteran's residuals of fracture of lumbar vertebra was proper. Based on the evidence before the RO at the time the reduction was effectuated, the Veteran's residuals of fracture of lumbar vertebra showed improvement. 38 C.F.R. §§ 3.105(e) (2013). As previously stated, under DC 5235, a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5235. The evidence shows that on VA examination in May 2009, the Veteran had no ankylosis of the thoracolumbar spine and was able to forward flex his thoracolumbar spine to 60 degrees, with no additional loss of range of motion upon repetitive testing. Although the private physician stated that there had been no improvement, this was contradicted by the objective findings on the VA examination. Therefore, the Board finds that reduction of the rating for residuals of fracture of lumbar vertebra from 40 percent to 20 percent was proper. Accordingly, restoration of the 40 percent rating is not warranted as the evidence did not demonstrate entitlement to the higher rating at the time of reduction. Furthermore, subsequent evidence shows that the severity of the disability did not warrant any subsequent increase. Upon VA examination in June 2010, the Veteran was not found to have any abnormal spine curvatures and was able to forward flex his thoracolumbar spine to 50 degrees, with no additional limitations of motion after three repetitions of range of motion. In sum, the Board finds that the weight of the credible evidence shows that the reduction of the Veteran's residuals of fracture of lumbar vertebra from 40 percent to 20 percent, effective January 1, 2010, was proper. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The rating reduction from 40 percent to 20 percent for residuals of fracture of lumbar vertebra, effective January 1, 2010, was proper. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs