Citation Nr: 1602288 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 11-12 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a 40 percent rating for a service-connected herniated L5-S1 lumbar disc post discectomy and anterior spinal fusion with plate and two screws, including considering the propriety of the reduction to a 20 percent rating for this low back disability effective January 1, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 2002 to February 2008. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, reduced the disability evaluation assigned to the service-connected lumbar spine disability from 40 to 20 percent effective January 1, 2010. In February 2015, in support of her appeal contesting that reduction and requesting reinstatement of the prior rating for this service-connected low back disability, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in other words at a Travel Board hearing. A transcript of the hearing is of record. The Board remanded the claim in March 2015 for further development, including especially to obtain outstanding medical treatment records potentially relevant to the claim. FINDINGS OF FACT 1. In July 2009, the RO notified the Veteran of the proposed reduction in the rating for her service-connected low back disability from 40 to 20 percent. She was given opportunity to contest the reduction, including by having a hearing on the matter. 2. A subsequent September 2009 rating decision implemented the reduction in rating from 40 to 20 percent, prospectively effective as of January 1, 2010. 3. At the time of the reduction, the 40 percent rating for the low back disability had been in effect for less than five years. 4. When the RO reduced the rating for this low back disability there had been sustained and material improvement in the disability - including in terms of the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria are not met for restoration of the prior 40 percent rating for this low back disability; it was appropriate under the circumstances to reduce the rating for this disability to 20 percent. 38 U.S.C.A. §§ 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.343, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist a Veteran in substantiating a claim. Regarding the duty to notify, VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that she is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice fulfilling these requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a July 2009 letter accompanying the rating decision proposing a reduction in the evaluation assigned for her service-connected low back disability. Though not required, she also received notice regarding the disability-rating and effective-date elements of the claim in a more recent April 2013 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); and Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (reaffirming that, once the underlying claim for benefits has been substantiated, such as when the underlying claim of entitlement to service connection is granted, additional Veterans Claims Assistance Act (VCAA) notice concerning any "downstream" element of the claim, such as in this instance the disability-rating and effective-date elements, is not required because the claim as it arose in its initial context has been proven, therefore any defect in not providing additional notice is not prejudicial). Moreover, as the Board previously explained when remanding this claim in March 2015, rating-reduction claims are different from increased-rating claims. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) ("The BVA incorrectly phrased the issue in terms of whether appellant was entitled to an increased rating; in fact and in law, the issue presented to the BVA, and to this Court, is not whether the Veteran was entitled to an increase but whether the reduction of appellant's rating from 100% to 10% was proper); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) ("This is a rating reduction case, not a rating increase case."). If a claim is appealed to the Board on the basis of a reduction only, there is no need to also discuss whether ratings in excess of the reduction are warranted. As such, in this case, only the propriety of the reduction is at issue in this appeal. This, in turn, means the Veteran need not have received the type of notice contemplated by Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010), since it concerns claims for increased ratings, not instead rating reductions. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, irrespective of whether the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). To satisfy this additional obligation, VA has obtained records of treatment reported by the Veteran, including VA treatment records from the Daytona Outpatient Clinic (OPC) acquired in accordance with the Board's March 2015 remand directive. In obtaining these additional records, there was the required compliance, certainly substantial compliance, with this remand instruction. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not reported receiving treatment for the service-connected low back disability at any other federal facilities or from a private physician. The record on appeal also contains VA examination reports dated in April 2008 and June 2009 addressing the severity of this disability. The claim was most recently adjudicated in a May 2015 Supplemental Statement of the Case (SSOC) in compliance with another of the Board's remand directives. Consequently, the Board finds that VA has complied with the VCAA's notification and assistance requirements and the Board's March 2015 remand instructions. Claim for Restoration Service connection for a low back disability, characterized as a herniated L5-S1 lumbar disc post discectomy and anterior spinal fusion with plate and two screws, was awarded in a June 2008 rating decision with an initial 40 percent evaluation assigned effective February 20, 2008. The September 2008 rating decision on appeal reduced the evaluation assigned this low back disability to 20 percent prospectively effective as of January 1, 2010. The Veteran contends that restoration of the previous rating is warranted since this disability has not improved to justify a lesser rating for it. The provisions of 38 C.F.R. § 3.105(e) allow for a reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction, and the Veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). 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)(i). Here, to this end, a July 2009 RO decision proposed to reduce the evaluation for the Veteran's service-connected low back disability from 40 to 20 percent. A letter accompanying the decision duly informed her she had 60 days to submit evidence and request a hearing if she did not believe the reduction in rating was warranted. She did not request a hearing or otherwise respond to the proposed rating reduction. In the subsequent September 2009 decision on appeal, the RO resultantly reduced the rating for her low back disability to 20 percent prospectively effective as of January 1, 2010. The Board, therefore, finds that VA has complied with the procedural requirements of 38 C.F.R. § 3.105(e) in proposing and reducing the rating for this service-connected disability. The initial 40 percent evaluation assigned for the Veteran's low back disability was in effect from February 20, 2008 to January 1, 2010. Thus, as that rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b), which provide additional regulatory hurdles to rating reductions, do not apply. Instead, the provisions of 38 C.F.R. § 3.344(c) provide that ratings in effect for less than five years may be reduced upon a showing that the disability has improved. In Brown v. Brown, 5 Vet. App. 413 (1993), the U.S. Court of Appeals for Veterans Claims (Court/CAVC) identified general regulatory requirements that are applicable to all rating reductions, including those that have been in effect for less than five years. Id, at 417. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and evaluation of the disability, that each disability be viewed in relation to its history. Id, at 420. Similarly, 38 C.F.R. § 4.2, establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of the veteran's disability. Id. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. The question consequently currently before the Board is whether the Veteran's low back disability had demonstrated improvement of this type contemplated at the time of the rating reduction in September 2009. After reviewing the relevant evidence, the Board finds that the reduction in rating was warranted since the Veteran's disability had shown the required improvement in orthopedic and neurologic symptoms, also that would be maintained under the ordinary conditions of life and work. The Veteran's low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5241, for a spinal fusion under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. To determine whether an improvement in the service-connected lumbar condition actually occurred, the Board must compare the severity of the disability prior to September 2009 and at the time of the reduction. During an April 2008 VA examination, performed in conjunction with her initial claim for service connection, the Veteran complained of moderate back pain with weekly flare-ups of severe symptoms. She denied having any incapacitating episodes of back pain, but reported that she could not walk a full mile due to pain. Her thoracolumbar (thoracic and lumbar) spine had severely limited range of motion with forward flexion to only 25 degrees and a combined range of motion of 121 degrees with pain at the endpoint of testing. Consider that normal forward flexion of the thoracolumbar spine is to 90 degrees. See 38 C.F.R. § 4.71a, Plate V. Forward flexion to 30 degrees or less (meaning to 1/3rd or less of normal) warrants a 40 percent evaluation under DC 5241 of the General Rating Formula. Inspection of her spine during the examination showed muscle spasms, guarding and pain with motion, and lumbar flattening. She also evidenced several signs of neurological impairment; to wit, vibration, light touch, and positional senses were all decreased on examination, her ankle reflexes reduced, and straight leg raising positive bilaterally. Compared to those findings from that examination, the Veteran's service-connected low back disability showed substantial improvement in all aspects of testing during her subsequent June 2009 VA examination. The Board initially observes that the June 2009 examination report is as full and complete as the report of the examination earlier performed in April 2008. Both examinations included a full recitation of the Veteran's history, a detailed description of her then current complaints, and objective findings addressing the orthopedic, neurological, and functional manifestations of the disability. Regarding her subjective complaints, the Veteran indicated to the June 2009 VA compensation examiner that she experienced low back pain that was aggravated with lying on her stomach and standing for prolonged periods. This pain was relieved with nonsteroidal anti-inflammatory medication (NSAIDs). In contrast to the previous examination, she said she had no limitations on walking, no flare-ups of symptoms, and her spine had a normal appearance without lumbar flattening or muscle spasms or guarding. Range of motion was also improved with forward flexion measured to 45 degrees (so to 1/2 of normal rather than just to a 1/3rd or less), combined motion to 135 degrees, and no objective evidence of pain during testing. These findings are clearly contemplated by the lesser 20 percent evaluation under DC 5241 of the General Rating Formula, which provides for this rating when, as here, forward flexion is limited to between 30 and 60 degrees. Moreover, neurological testing during that examination was completely normal with full motor, sensory, vibratory, and reflex senses and straight leg raising negative. The June 2009 VA examination report also includes a nonspecific finding of ankylosis of the thoracolumbar spine that was not observed during the earlier April 2008 VA examination. But the June 2009 VA examiner's identification of ankylosis is somewhat at odds with the other findings in the examination report since the Veteran clearly had useful motion of her spine and, indeed, noticeably improved range of motion when compared to the results of her previous examination in April 2008. She underwent a lumbar discectomy and spinal fusion during service in May 2005, and it appears the June 2009 examiner's finding of ankylosis was a reference to the fusion surgery. Generally, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987). An ankylosed joint is more commonly referred to as "frozen." See, e.g., Dorland's Illustrated Medical Dictionary 286 (32d ed.2012). Here, though, review of the record as a whole clearly establishes the Veteran does not have what could be considered true ankylosis of her spine as it has never been prohibited from useful or quantifiable motion or been characterized as frozen or anything tantamount to that. Therefore, the identification of ankylosis by the June 2009 VA examiner does not weigh against a finding that the service-connected low back disability had improved by the time of the September 2009 rating reduction. In fact, as discussed, the June 2009 VA examination report clearly demonstrates improvement in the subjective, but also in the objective orthopedic and neurological aspects of the disability. The evidence also establishes that the Veteran was better able to function under the ordinary conditions of life and work due to improvement in her low back disability. See Brown at 420-421. The April 2008 VA examiner indicated the Veteran was not employed at the time of that earlier examination and identified mild-to-severe effects from her disability on the activities of daily living. In contrast, she was employed as a part-time server in a restaurant by the time of the June 2009 VA examination. She explained that she gave up occasional shifts throughout the year due to low back symptoms, but the examiner determined the disability did not cause significant effects on the Veteran's employment and no disability in relation to physical or sedentary activities. There also were no effects on her activities of daily living. Treatment records from the Daytona OPC indicate some functional impairment owing to this service-connected disability, but also still document overall improvement in the disability. In August 2009 she was seen by her primary care physician with a complaint of back pain that some days would leave her unable to move. While this subjective complaint indicates a severe level of impairment, she also acknowledged that she had stopped taking her prescribed pain medication because of the side effects, further indicating that she was not utilizing any then current treatment or pain management for her condition. Her primary care provider prescribed a new medication and ordered a CT scan of the lumbar spine. No other action was taken and the Veteran denied experiencing any numbness or tingling of her extremities, loss of strength, or difficulty with balance or coordination due to her low back disability. So when considering all of the evidence, including her statements during her June 2009 VA examination and to her VA primary care physician, the Board finds that her service-connected low back disability had evidenced the required improvement in function by the time of the rating reduction. As a final matter, the Board sees the September 2009 rating decision did not include review of any treatment records. That rating decision noted that a search of the Veteran's virtual claims file did not include any medical treatment records pertinent to the claim. Accordingly, the August 2009 treatment record from the Daytona OPC was not reviewed by the RO prior to the reduction of the evaluation assigned for the service-connected low back disability. However, this record is deemed constructively of record at the time of the rating reduction and yet, as noted above, does not establish a lack of improvement in the Veteran's low back disability. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, even with consideration of the complete record, including her August 2009 complaints of low back pain at the Daytona OPC, the Board concludes that a fair preponderance of the evidence establishes the required improvement in her service-connected low back disability by the time of the September 2009 rating reduction. Accordingly, restoration of the 40 percent rating is not warranted, and this appeal must be denied. ORDER The claim for restoration of the 40 percent rating for the service-connected low back disability is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs