Citation Nr: 1600285	
Decision Date: 01/05/16    Archive Date: 01/12/16

DOCKET NO.  99-17 925	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether a reduction of the rating for degenerative disc disease of L5-S1 from 20 percent to 10 percent effective July 1, 1998, was proper.

2.  Entitlement to a rating higher than 10 percent for degenerative disc disease of L5-S1 from July 1, 1998, to September 25, 1998, and a rating higher than 20 percent thereafter.

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Penelope Gronbeck, Attorney



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active service from July 1978 to June 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which reduced the assigned rating for degenerative disc disease of L5-S1 from 20 percent to 0 percent effective July 1, 1998.  A subsequent rating decision in July 1999 assigned a 10 percent rating effective July 1, 1998.

The Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) in September 2004.  That VLJ has since left the Board, and the Veteran testified at an additional hearing before the undersigned VLJ in October 2012.

The Board previously remanded this case in January 2005, May 2010, June 2012, and May 2013 for additional development.  The June 2012 remand specifically stated why the reduction, increased rating, and TDIU issues are collectively before the Board. 

The issues of entitlement to a rating higher than 20 percent for degenerative disc disease of L5-S1 from July 1, 1998, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The reduction in the Veteran's rating for degenerative disc disease of L5-S1 from 20 percent to 0 percent was made effective July 1, 1998, less than 60 days following notice of the final rating action on June 22, 1998.

2.  The appropriate effective date for the reduction is August 1, 1998.


CONCLUSION OF LAW

The 20 percent rating is restored from July 1, 1998, through July 31, 1998; from August 1, 1998, the reduction to 10 percent is proper.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.105, 3.344 (2015); VAOPGCPREC 31-97 (Aug. 29, 1997).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Propriety of the Reduction

The regulations pertaining to the reduction of disability evaluations contain their own notification and due process requirements.  See 38 C.F.R. § 3.105(e), (i).  For this reason, the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA) do not apply to this appeal of a reduced rating.

The Board finds that VA has complied with the notification and due process requirements applicable to the reduction of a disability evaluation for degenerative disc disease.  Specifically, an April 1998 rating decision and accompanying letter informed the Veteran of the proposed reduction, the evidence, and reasons and bases for the proposed reduction.  The letter also informed the Veteran of the right to submit additional evidence or argument and to present such evidence or argument at a personal hearing, pursuant to 38 C.F.R. § 3.105(e), (i).

Historically, the 20 percent rating for the Veteran's back was awarded in a November 1996 rating decision, effective from September 10, 1996.  This 20 percent rating was first reduced to 0 percent in the June 1998 rating decision, based on the Veteran's failure to report for a VA examination in February 1998.  He did eventually appear for another VA examination in June 1999.  Based upon those findings, a 10 percent rating was assigned in the July 1999 rating decision.

The 20 percent rating was therefore in effect for less than 5 years.  Indeed, in assigning the 20 percent rating, the November 1996 rating decision noted that there was a likelihood of improvement, and that the assigned rating was not permanent and was subject to future evaluation.  As a result, the regulations governing stabilization of disability evaluations found in 38 C.F.R. § 3.344(a) and (b) are not applicable.  38 C.F.R. § 3.344(c).  Reexaminations disclosing improvement will warrant a reduction in rating.  Id.

The Board notes that June 1999 VA examination upon which the ultimate reduction from 20 percent to 10 percent was based on was adequate, as it was based on a review of the claims file and specifically referenced findings from the prior examination in November 1996.  See Hohol v. Derwinski, 2 Vet. App. 169 (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).  It also assessed the functional impact of the Veteran's condition on daily functioning.  Moreover, improvement was shown in the June 1999 examination when compared to the November 1996 examination.  Specifically, range of motion of the lumbar spine was limited to 50 degrees of forward flexion, 10 degrees of extension, and 40 degrees of bilateral lateral bending in 1996.  In 1999, range of motion of the lumbar spine was normal.

The reduction, following the 60-day period to allow evidence to be submitted, was adjudicated in a June 1998 rating decision, the subject of this appeal.  The provisions of 38 C.F.R. § 3.105 state that the award will be reduced 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.  In this case, notice of the June 1998 final rating action was sent to the Veteran on June 22, 1998, informing him that his award would be reduced effective July 1, 1998.  This renders the reduction procedurally defective because the effective date of the reduction (July 1, 1998) was less than 60 days from the date of notice to the Veteran of the final rating action (June 22, 1998), contrary to the provisions of 38 C.F.R. § 3.105(e), (i).  

The fact that the AOJ used an incorrect effective date to implement an otherwise proper reduction of the Veteran's benefits does not render the reduction void ab initio.  See VAOPGCPREC 31-97 (Aug. 29, 1997) (stating that the reduction of a disability rating, if otherwise supportable, is not rendered void ab initio by virtue of error in the assignment of the effective date).  Rather, the appropriate remedy is to award one additional month of compensation at the non-reduced percent rate when an error is made in assigning the effective date for the reduction.  In this case, one month of additional compensation at the 20 percent rating is warranted from July 1, 1998.  The reduction to 10 percent effective August 1, 1998, is otherwise proper.


ORDER

Restoration of the 20 percent rating for degenerative disc disease of L5-S1 from July 1, 1998, to July 31, 1998, is granted.

The reduction of the Veteran's rating for degenerative disc disease of L5-S1 from 20 percent to 10 percent effective from August 1, 1998, is proper, and restoration of the 20 percent rating is denied.


REMAND

The Board remanded this matter in May 2013, in part, to obtain a VA examination to assess the current severity of the Veteran's lumbar spine disability.  The Veteran's then-representative had argued that a September 2010 VA examination was inadequate because the examiner did not adequately recognize the significance of the Veteran's reported pain, and that the rating agency failed to adequately consider functional loss caused by pain as outlined in DeLuca v. Brown, 8 Vet. App. 202 (1995), as well as 38 C.F.R. § 4.10, 4.40, 4.45.

A VA examination was obtained in May 2015.  However, the examiner did not fully detail the functional loss associated with the Veteran's lumbar spine disability due to pain.  Range of motion measurements were obtained, and the examiner noted pain which caused functional loss.  However, the examiner did further clarify the amount or level of functional loss due to pain during range of motion testing.  Therefore, an additional VA examination is necessary in order to provide the requested information.

As the Veteran's claim for a TDIU is intertwined with the rating assigned for his lumbar spine disability, that claim must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two claims are "inextricably intertwined" when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's VA treatment records for the period from September 2015 through the present and associate them with the claims file.

2.  Schedule an appropriate VA compensation examination to reassess the severity of the Veteran's service-connected lumbar spine condition.  This includes, but is not limited to, determining his range of motion, whether there is additional functional or other impairment on account of pain, weakness, premature or excess fatigability, and incoordination; whether there is ankylosis; whether there is any associated bowel, bladder, or other neurological impairment; and whether the Veteran has intervertebral disc syndrome (IVDS) that is productive of incapacitating episodes requiring bed rest prescribed by a physician.  All necessary tests should be conducted.

The examiner must, to the extent possible, specify when the onset of pain occurs during range of motion testing, using specific degree measurements.  The examiner must also describe the functional impact of the Veteran's lumbar spine disability on his occupational and daily functioning.

If the examiner is unable to provide the requested information without resorting to speculation, he/she must state why this is the case.

3.  Then readjudicate the Veteran's claim for a rating higher than 20 percent for degenerative disc disease of L5-S1 and entitlement to a TDIU, including on an extraschedular basis.  If the claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and allow them an appropriate time to respond before returning the file to the Board for further appellate review of the claims.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).


______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs