Citation Nr: 1511744 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 12-29 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether the reduction in the evaluation of degenerative disc disease of the lumbar spine (L5-S1 fusion procedure) from 40 to 20 percent, effective June 27, 2012, was proper. 2. Entitlement to an increased rating for left ankle injury. 3. Entitlement to service connection for upper gastrointestinal disability, to include as due to Gulf War environmental hazards. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran had active service from April 1994 to April 2001 with an additional period of service in the National Guard from April 2001 to April 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, in which the RO reduced the Veteran's evaluation from 40 percent to 20 percent for his degenerative disc disease (DDD) of the lumbar spine, effective from June 27, 2012. Also on appeal are April and August 2012 decisions pertaining to the issues of entitlement to an increased rating for left ankle injury and service connection for an upper gastrointestinal condition. Initially, the Board notes that the Veteran was granted service connection for his DDD of the lumbar spine on April 9, 2001, at which time he was assigned an initial 20 percent evaluation for that disability. The RO granted the Veteran an increased rating, to 40 percent, from October 5, 2010. Thereafter, the RO granted a temporary total rating from March 1, 2011, with the 40 percent rating beginning on October 1, 2011. The RO reduced the rating for the Veteran's DDD, decreasing the evaluation to 20 percent effective June 27, 2012. The Board notes that the Veteran initiated additional appeals that the RO addressed in two statements of the case in April 2014, to include service connection for obstructive sleep apnea, cervical osteoarthritis, right shoulder condition (also claimed as upper extremity radiculopathy), left shoulder condition (also claimed as upper extremity radiculopathy), tension headaches, left knee instability, right ankle condition, and entitlement to an increased rating for left knee degenerative joint disease with limitation of flexion (previously evaluated as left knee Bakers cyst with chondromalacia to include limitation of flexion). However, the Veteran did not perfect appeals as to these issues. Thus, the issues are not before the Board. The Veteran testified at a hearing in January 2013 before a Decision Review Officer (DRO) at the RO and at a videoconference hearing in December 2014 before the undersigned Veterans Law Judge (VLJ). Copies of the transcripts are associated with VBMS. The record was held open for an additional 60 days after the December 2014 hearing, during which the Veteran submitted a January 2015 back examination. The Veteran changed representatives during the pendency of the appeal. Effective May 2014, National Association of County Veterans Service Officers assumed representation; they are recognized as the current representative. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for upper gastrointestinal (GI) disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a July 2012 rating decision, the RO implemented reductions to the service-connected DDD of the lumbar spine, effective June 27, 2012. 2. Evidence used to confirm the rating reduction did not reflect improvement in the service-connected DDD as the findings of the September 2013 VA examination were inadequate. 3. In December 2014, prior to the promulgation of a decision on entitlement to an increased rating for left ankle injury, diagnosed as tenosynovitis posterior tibialis, the Veteran withdrew his appeal at his hearing. CONCLUSIONS OF LAW 1. Reduction of a 40 percent rating for DDD of the lumbar spine was improper. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for withdrawal of the Veteran's appealed claim of entitlement to an increased rating for left ankle injury, tenosynovitis posterior tibialis, have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2014); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2014). The provisions of 38 C.F.R. § 3.105(e) define procedural guidelines for the reduction in evaluation of a service-connected disability. The regulations provide where the reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and request a predetermination hearing. The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i) (2) (2014). The Board finds that the reduction of the service-connected DDD of the lumbar spine rating from 40 percent disabling to 20 percent, effective June 27, 2012, did not result in a reduction in the amount of compensation payable to the Veteran. As such, the provisions of 38 C.F.R. § 3.105(e) do not apply. See VAOPGCPREC 71-91; see also Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89 (2007). Moreover, because the Board is granting the full benefit sought on appeal with respect to the restoration of a 40 percent rating for DDD, the Board finds that no further discussion regarding VA notice or assistance duties is required. Restoration of a 40 Percent Rating The Veteran contends that restoration of a 40 percent rating is warranted for his service-connected DDD of the lumbar spine. The record shows the Veteran's 40 percent disability rating for the lumbar spine disability was in effect less than five years at the time of the rating reduction; therefore, the provisions of 38 C.F.R. § 3.344(a), which set forth regulatory requirements for evaluations in effect for five or more years, are not for application. See 38 C.F.R. § 3.344(c) (2014). Because the Veteran's disability rating was in effect for less than five years, the Board finds that the provisions of 38 C.F.R. § 3.344(c) are for application. 38 C.F.R. § 3.344(c) provides that, for disabilities which have not become stabilized and are likely to improve, reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. The Board is required to ascertain in any rating reduction case, based upon review of the entire record, whether the evidence reflects an actual change in the disability, whether the examination reports reflecting such change are based upon thorough examination, and whether any improvement actually reflects improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420 (1993). In determining whether a 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. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82. However, post-reduction evidence may not be used to justify an improper reduction. The Veteran's lumbar spine disability was rated under Diagnostic Code 5243 (Intervertebral Disc Syndrome). Under the applicable criteria, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the general rating for disease 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 38 C.F.R. § 4.25. A 10 percent evaluation is warranted 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, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the 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. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2014). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2014). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The reduction of the rating for the service-connected DDD of the lumbar spine was based upon June 2012 and September 2013 VA examinations. The June 2012 examiner found forward flexion was 45 degrees and the combined range of motion was 140 degrees. However, the Veteran testified before the January 2013 DRO that the VA examiner grabbed and yanked him in ways during the examination that caused him pain as he was "assisted" to move past points where he would normally go. The Veteran was afforded a VA examination in September 2013 in which the examiner found forward flexion was 50 degrees and the combined range of motion was 120 degrees. However, the Veteran testified before the undersigned VLJ that the September 2013 testing was inadequate, pointing out that the VA examiner stated that he "refused" to participate in extension testing when he truly could not bend as requested due to pain. The Board finds that the reduction implemented in the July 2012 rating decision was improper as it was based on the June 2012 and September 2013 VA examinations, the findings of which were inadequate. The Board notes that the examination results were the basis for the reduction and were the only evidence relevant to issue of whether the lumbar spine disability had improved as of the rating decision. As such, the Board concludes that the findings of the June 2012 and September 2013 VA examinations were not adequate to reduce the rating, and thus, are of limited probative value in determining whether the Veteran had experienced improvement in his disability. Based on the foregoing evidence, the June 2012 reduction of the disability rating for the service-connected DDD of the lumbar spine disability from 40 percent to 20 percent was not proper. Therefore, restoration of the 40 percent disability rating for the lumbar spine disability is warranted. Left Ankle Injury The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204 (2013). Withdrawal may be made by the veteran or by his authorized representative. 38 C.F.R. § 20.204. At his December 2014 hearing before the Board, the Veteran withdrew his appeal as to his claim of entitlement to an increased rating for left ankle injury, tenosynovitis posterior tibialis. The Veteran's statements indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). Hence, there remain no allegations of errors of fact or law for appellate consideration in regards to the issue of entitlement to an increased rating for left ankle injury, tenosynovitis posterior tibialis. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. ORDER As reduction of the DDD of the lumbar spine (L5-S1 fusion procedure) was improper, restoration of the 40 percent disability rating, effective June 27, 2012, is granted. The appeal of the claim of entitlement to an increased rating for left ankle injury is dismissed. REMAND The Board finds that further development is required prior to adjudicating the Veteran's claim for entitlement to service connection for upper GI disability. See 38 C.F.R. § 19.9 (2013). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. Id. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in June 2012 in which the examiner noted that no private, service, or VA records were reviewed. The examiner noted that when the Veteran served in Kuwait, he did breathe smoke well fires, diesel fields, and occasionally moved bodies. The examiner stated that while the Veteran was in Kuwait, he had nausea, vomiting, and weakness lasting approximately three days and resolved. The examiner stated that there had been no recurrence of the symptoms during the Veteran's remaining time in Kuwait and the symptoms had not reoccurred since. The examiner opined that the claimed condition was less likely as not (less than 50/50 probability) caused by or a result of the episode of distress lasting three days while serving in Kuwait without recurrence. The rationale for the opinion given was that as the Veteran currently had no symptoms of nausea, vomiting, or GI upset since returning from Kuwait, and thus, no further opinion was required. The Board finds that the June 2012 VA examination report is inadequate because it is based on an inaccurate factual predicate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). A VA treatment note from October 2013, associated with Virtual VA, shows that the Veteran is currently diagnosed with and treated for gastroesophageal reflux disease (GERD). Moreover, the Veteran testified before the undersigned VLJ that he still experiences symptoms of GI upset. Thus, the Board finds that an additional VA opinion is necessary as there remains some question as to the etiology of the current GERD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his currently diagnosed GERD. A review of the entire record must be conducted. Any indicated studies should be performed. Based on the examination and review of the record, the examiner is asked to render an opinion as to whether it is at least as likely as not that the Veteran's GERD is related to service. Review of the entire file is required; however, attention is invited to the Veteran's sworn hearing testimony, in which he describes his in-service symptoms and self-treatment. See BVA Hearing Testimony, VBMS, Correspondence, receipt date December 3, 2014, pages 4-16. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Note that the absence of documented medical treatment in the service treatment records cannot serve as the sole basis for a negative opinion. The Veteran is competent to testify as to his self-treatment. 2. Then, readjudicate the remaining issue on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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 of Veterans' Appeals 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 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs