Citation Nr: 1625970	
Decision Date: 06/28/16    Archive Date: 07/11/16

DOCKET NO.  12-14 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to restoration of a 20 percent disability rating for degenerative disc disease of the lumbar spine from July 30, 2010.

2.  Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine.  

3.  Entitlement to a total rating based on individual unemployability due to service-connected disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Conner, Counsel


INTRODUCTION

The appellant served on active duty in the U.S. Marine Corps from June 2004 to June 2008.  

This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

In a February 2015 decision, the Board determined that a reduction in the disability rating for the appellant's service-connected degenerative disc disease of the lumbar spine from 20 percent to 10 percent, effective July 30, 2010, was proper; denied a rating in excess of 20 percent for degenerative disc disease of the lumbar spine prior to July 30, 2010; and denied a rating in excess of 10 percent for degenerative disc disease of the lumbar spine from July 30, 2010.  In addition, the Board remanded the issues of entitlement to service connection for a right shoulder disability, a right ankle disability, and a left ankle disability, as well as the issue of entitlement to a total rating based on individual unemployability due to service-connected disability, to the RO for additional evidentiary development.  

The appellant appealed the Board's February 2015 decision to the U.S. Court of Appeals for Veterans Claims (Court).  While the matter was pending before the Court, in March 2016, the appellant's then-attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand.  In a March 2016 order, the Court granted the motion, vacated that part of the Board's February 2015 decision which determined that the rating for the appellant's service-connected degenerative disc disease of the lumbar spine was properly reduced from 20 percent to 10 percent, effective July 30, 2010, to include whether an increased rating was warranted, and remanded the matter for readjudication.

In addition, while the matter discussed above was pending before the Court, in an April 2016 rating decision, the RO granted service connection for acromioclavicular arthritis of the right shoulder with impingement syndrome and assigned an initial 10 percent rating, effective January 26, 2010; granted service connection for left ankle strain and assigned an initial zero percent rating, effective January 26, 2010; and granted service connection for right ankle strain and assigned an initial zero percent, effective January 26, 2010.

The grant of service connection for these disabilities constitutes a full award of the benefits sought on appeal with respect to the claims of service connection for a right shoulder disability, a right ankle disability, and a left ankle disability.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  The record currently available to the Board contains no indication that the appellant has initiated an appeal with the initial ratings or effective dates assigned.  Thus, those issues are not currently before the Board.  Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned).

The issues of entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine and a total rating based on individual unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an August 2010 rating decision, the RO reduced the rating for the appellant's service-connected degenerative disc disease of the lumbar spine from 20 percent to 10 percent, effective July 30, 2010.

2.  The 20 percent disability rating for the appellant's service-connected degenerative disc disease of the lumbar spine had been in effect since June 15, 2008, a period of less than five years.

3.  The RO's action in reducing the rating for the appellant's service-connected degenerative disc disease of the lumbar spine from 20 percent to 10 percent effective July 30, 2010, did not result in a reduction of compensation payments.

4.  The evidence of record at the time of the August 2010 rating decision did not clearly reflect a material improvement in the appellant's service-connected degenerative disc disease of the lumbar spine which resulted in an improvement in his ability to function under the ordinary conditions of life and work.


CONCLUSION OF LAW

The reduction of the rating for degenerative disc disease of the lumbar spine from 20 percent to 10 percent effective July 30, 2010, was not proper.  Restoration of the 20 percent disability rating for degenerative disc disease of the lumbar spine effective July 30, 2010, is warranted.  38 U.S.C.A. §§ 1155, 5112, 5107 (West 2014); 38 C.F.R. §§ 3.105, 3.344(c), 4.71a, Diagnostic Codes 5242-5237(2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim.  See 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2015).  VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).  In light of the favorable disposition below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error with respect to the issue adjudicated in this decision.



Background

In May 2008, the appellant submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities, including a low back disability.  

In connection with his claim, the appellant was afforded a VA medical examination in June 2008.  At that time, he reported a constant deep soreness in his back which he rated as a 2 on a pain scale of 1 to 10.  He reported that he used pain medication with fair results and no side effects.  The appellant also reported weekly flare-ups of low back pain lasting 12 hours during which his pain increased to a 6.  These flare-ups were precipitated by lifting and sleeping in the wrong position and alleviated by rest, medications, and massage.  The examiner noted that during flare-ups, there was additional limitation of motion and functional impairment.  His back pain affected his ability to train physically, groom and bathe, get dressed, and work.  He was no longer able to engage in recreational activities such as lifting weights and martial arts.  Physical examination showed forward flexion from zero to 60 degrees.  Extension was to 10 degrees.  Lateral flexion was to 20 degrees, bilaterally.  Lateral rotation was to 40 degrees, bilaterally.  There was pain throughout motion.  Repetition caused no change in the range of motion but increased the level of pain.  Neurological examination was normal.  There was no atrophy of muscles.  The impression was degenerative disc disease, at least as likely as not service connected.  

In a September 2008 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine and assigned an initial 20 percent rating, effective June 15, 2008.  In the rating decision, the RO indicated that the 20 percent rating had been assigned pursuant to Diagnostic Codes 5242-5237 "[b]ased on the limited motion and pain."

In June 2010, the appellant submitted a claim for an increased rating for his service-connected low back disability.  He described his low back pain as constant.  He further indicated that he had recently thrown his back out, requiring him to seek emergency treatment.  He stated that his range of motion had changed and that he was experiencing episodes in which he was unable to move or get out of bed.  

In connection with the claim, the appellant was afforded a VA medical examination in July 2010.  He reported that since his last examination, he had experienced an increase in back pain and a decrease in his ability to perform physical activities such as lifting and bending.  He also indicated that he had had several visits to the emergency room due to his low back pain.  These episodes of back pain had left him incapacitated and unable to perform any activities, and had required bedrest as ordered by physician.  The appellant indicated that these episodes typically occurred about once every 2 to 3 months.  The appellant reported that his back symptoms currently included a constant pain in his lumbar spine, as well as weakness, decreased motion, radiation of back pain down into his buttocks and upper legs, and stiffness.  He also reported episodes of feeling unsteady when his back went out causing him to fall to his knees.  These episodes could happen up to twice weekly.  He reported flare-ups of symptoms with any prolonged standing, lifting, bending, and squatting.  He indicated that he had been unable to hold any job positioning due to his lumbar spine.  With his last position in a motorcycle shop, he had been fired after he was unable to perform detail washing or ride the motorcycles.  The appellant indicated that his treatment regimen now included chiropractor visits, muscle relaxers, and hydrocodone.  

Examination showed forward flexion to 82 degrees with pain throughout.  With repetition, forward flexion decreased to 74 degrees.  Extension was to 20 degrees and decreased to 16 degrees with repetition.  Left lateral flexion was to 36 degrees.  Right lateral flexion was to 30 degrees and decreased to 25 degrees with repetition.  Left and right lateral rotation was to 25 degrees.  The examiner noted that there was a loss in range of motion with repetition due to pain.  Strength and sensation was normal in the lower extremities.  There was no tenderness on palpation of the paraspinal muscles and slight lordosis.  The diagnosis was lumbar central disc protrusion with annular bulge, facet fusion with ventral cyst, and sciatica with bilateral lower extremities.

Based on this evidence, in an August 2010 rating decision, the RO reduced the rating for the appellant's service-connected degenerative disc disease of the lumbar spine to 10 percent, effective July 30, 2010, which the RO noted was the date of the VA examination which showed that his disability had improved.  Despite the reduction, the appellant's combined disability rating remained unchanged at 90 percent.  In an August 2010 letter, the RO advised the appellant of its decision and indicated that despite its action, his monthly compensation would remain unchanged.

The appellant appealed the RO's determination.  In his September 2010 notice of disagreement, the appellant indicated that during his recent VA medical examination, he had been forced to bend and flex beyond his capabilities, causing a great deal of pain and a period of incapacitation.  He also indicated that his lumbar spine continued to cause him economic hardships in that he had had to change employment because of the limitations from his spine.  He indicated that it was his belief that had the examiner recorded limitation of motion measurements based on pain, an increased rating would be warranted.  

VA chiropractic records obtained in support of the appeal include an April 2010 chiropractic care note which indicated that since the appellant's last visit the month prior, he had had a flare-up of pain which became severe enough to prompt an emergency room visit during which he was treated within intravenous morphine.  He indicated that he continued to experienced acute back pain with extension and twisting while in seated position.  His pain presentation was a 6 on a pain scale of 1 to 10.  At a November 2010 chiropractic clinic visit, the appellant again reported an acute recurrence of chronic back pain.  He indicated that since his last visit to the clinic, he had had several ER visits.  The examiner also noted that the appellant's disability rating had been decreased, apparently based on his positive response to treatment which had allowed him to increase his activities of employment.  The examiner indicated, however, that "[i]t should be noted that the causation of his acute back flares remains unchanged.  The fact that this patient has fewer acute flares and debilitation recurrences should not be interpreted as resolution of his chronic underlying traumatically induced degenerative spinal conditions."  On examination, the appellant reported ongoing pain which he rated as a 6.  He also reported that his current job required lifting and manual labor which produced nightly back pain impacting his ability to sleep.  The examiner noted that although chiropractic care and core stability training had provided management tools, the appellant had nonetheless required emergency care for acute spasms.  Subsequent records dated to June 2011 show that the appellant continued to receive treatment for back pain.  

The appellant was afforded another VA medical examination in March 2012.  He reported flare-ups of back pain with overactivity.  He also reported jabs of pain in his back that radiated to his right leg.  Examination showed forward flexion to 80 degrees, increased to 90 degrees with repetition.  Extension was to 30 degrees, left and right lateral flexion was to 30 degrees, left and right lateral rotation was to 30 degrees.  The examiner noted that there was no limitation in range of motion with repetition; however, she indicated that the appellant had functional loss or impairment after repetitive use which included less movement than normal, as well as pain on movement.  The examiner also indicated that the appellant did not have intervertebral disc syndrome, although the basis for that conclusion is unclear, given the appellant's reports of radiating pain.  The examiner also indicated that the appellant's low back disability impacted his ability to work in that heavy lifting and bending caused an increase in pain.  

Subsequent VA clinical records associated with the record on appeal, but not reviewed by the RO, show that in May 2013, the appellant reported that he received chiropractic treatment several times monthly.  He had also been prescribed Percocet for pain.  His spouse reported that the appellant experienced daily incapacitating back pain.  Additional VA clinical records dated to December 2014 show continued complaints of radiating back pain.  


Applicable Law

VA's Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.10 (2015).

In VA's Rating Schedule, separate diagnostic codes identify the various disabilities.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support.  38 C.F.R. § 4.10.  Over a period of many years, a Veteran's disability may require reratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition.  38 C.F.R. § 4.1.

When a reduction in the rating of a service-connected disability or employability status 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 or her last address of record of the contemplated action and furnished detailed reasons therefor.  The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level.  38 C.F.R. § 3.105(e).  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.  Id.

In addition, the Veteran will be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice.  If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date.  The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility.  If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action.  38 C.F.R. § 3.105(h).

These are such important safeguards that the U.S. Court of Appeals for Veterans Claims (Court) has held that where VA has reduced a Veteran's rating without observance of applicable law and regulation, such a rating is void ab initio.  Brown v. Brown, 5 Vet. App. 413, 422 (1993).  Thus, to remedy such cases, the decision must be reversed as unlawful.  Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

Under 38 C.F.R. § 3.344(c), when a disability rating has been in effect for less than five years, reexaminations disclosing improvement will warrant a rating reduction.  Prior to reducing a Veteran's disability rating, however, 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."  Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10.  These general provisions "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability."  Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)).

The Court has held that such review requires VA

to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. . . .  Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  

Brown, 5 Vet. App. at 421; see also Schafrath, 1 Vet. App. at 594 (noting that "[t]hese requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition").  See also 38 C.F.R. § 3.344(c) (2015).

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, 2 Vet. App. at 277.

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


Analysis

As a preliminary matter, the Board finds that the procedural safeguards outlined in section 3.105(e) are not for application in this case.  As delineated above, the RO's action in reducing the rating for the appellant's service-connected low back from 20 percent to 10 percent, effective July 30, 2010, did not result in a reduction of compensation payments.  Under these circumstances, compliance with the pre-reduction procedural safeguards delineated in 38 C.F.R. § 3.105(e) was not required.  VAOPGCPREC 71-91 (Nov. 7, 1991); see also Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89, 92 (Vet. App. 2007).  Neither the appellant nor his representative has contended otherwise.

Thus, the next question for consideration is whether the reduction was proper based on applicable regulations.

At the time of the August 2010 rating decision at issue in this case, the 20 percent rating for the appellant's service-connected low back disability had been in effect since July 30, 2008, which was a period of less than five years.  Thus, the provisions of 38 C.F.R. § 3.344(c), which apply to evaluations in effect for less than five years, are for application in this case.  See 38 C.F.R. § 4.10.

In determining whether the reduction at issue in this case complies with the provisions of 38 C.F.R. §§ 4.10, 3.344(c), the Board has reviewed the entire record.  After so doing, the Board finds that, at the time of the August 2010 rating decision, the evidence did not establish that the appellant's service-connected low back disability had undergone an actual improvement warranting a rating reduction from 20 to 10 percent.

VA's Rating Schedule evaluates disabilities of the spine pursuant to a General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (pertaining to lumbosacral strain) and Diagnostic Code 5242 (2015) (pertaining to degenerative arthritis of the spine).

That formula provides that 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 following ratings are assigned:

A 10 percent evaluation is assigned 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 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 assigned for 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 gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2015).

Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance.  

Under Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  

Under Note (2):  For VA compensation purposes, 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.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2015).

In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015).  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when when intervertebral disc syndrome is productive of incapacitating episodes have a total duration of at least one week but less than two weeks during the past twelve months, a 10 percent rating is assigned.  When incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is assigned.  When intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned.  When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned.

Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015) provides 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.

Here, in the August 2010 rating decision at issue, the RO appears to have determined that a reduction was warranted solely based on range of motion test results obtained at the July 2010 VA medical examination.  The RO apparently determined that, because these values fell within the criteria for a 10 percent disability rating under the applicable rating criteria, a reduction was warranted.

Although the appellant exhibited greater range of motion at the July 2010 VA medical examination than he did at the June 2008 VA medical examination, that fact, in and of itself, does not justify a reduction.  Rather, in order to warrant a reduction, the evidence must show that the appellant's service-connected low disability materially improved overall resulting in an improvement in his ability to function under the ordinary conditions of life and work.  See e.g. Peyton v. Derwinski, 1 Vet. App. 282 (1990) (in claims for restoration, the central question is not whether the schedular criteria for a particular rating are met as in a claim for increase, but whether the criteria for reduction were met).  

In this case, the Board finds that the record does not support a finding that the appellant's low back disability actually improved as of July 30, 2010, resulting in an improvement in his ability to function under the ordinary conditions of life and work.  The examiner recorded no such finding, nor did the appellant report an improvement in his overall service-connected low back disability.  Rather, at the July 2010 VA medical examination, the appellant had specifically reported an increase in his low back symptoms since the June 2008 VA medical examination.  

At the time of the June 2008 examination, for example, the appellant rated his back pain as a 2 on a pain scale of 1 to 10 and indicated that he used pain medication with fair results and no side effects.  At the July 2010 VA medical examination, the appellant clearly reported that, since the June 2008 VA examination, his back pain had increased.  Unfortunately, the examiner did not include a pain scale in the examination report to quantify the increase in the appellant's perceived back pain.  The absence of this notation reduces the probative value of the examination as a good measure of the appellant's level of disability and fails to provide an accurate basis for comparison.  

Additionally, at the June 2008 examination, the examiner noted that the appellant experienced flare-ups, during which there was additional limitation of motion and functional impairment.  At the July 2010 VA medical examination, the appellant reported that, since the June 2008 VA examination, he had experienced an increase in low back symptoms which had reduced his ability to perform physical activities such as lifting and bending.  He also reported additional, new symptoms of both radiating pain down into his buttocks and upper legs, as well as episodes of feeling unsteady which caused him to fall to his knees.  Finally, he indicated that he had been fired from his job due to his inability to perform his duties secondary to back pain.  Again, the examiner's failure to quantify the functional impairment associated with the appellant's increased symptoms significantly reduces the probative value of the examination as a good measure of the appellant's actual level of disability and fails to provide an accurate basis for comparison to the June 2008 VA examination.  

Moreover, the Board notes that, despite the appellant's July 2010 reports of radiating low back pain and incapacitating episodes of back pain approximately once every 2 to 3 months, as well as the examiner's diagnosis of sciatica in the bilateral lower extremities, the RO failed to consider whether a 20 percent rating could be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; whether a separate rating was warranted for any associated neurological symptoms; or whether referral for an extraschedular rating was warranted to account for all of the service-connected symptoms which comprise the appellant's disability picture.  

In view of the foregoing, the Board finds that there is no clear basis upon which to conclude that the July 2010 examination results reflected an actual improvement in the appellant's low back disability.  Even assuming that the increased range of motion exhibited by the appellant at the July 2010 VA medical examination represented an improvement in his overall disability, the Board finds that the RO failed to consider whether such improvement would be maintained under the ordinary conditions of life.  In this case, the RO made no such findings, instead basing the reduction solely on the fact that the July 2010 VA medical examination indicated that the appellant's range of motion had increased.  In its rating decision, the RO referenced no additional evidence beyond the examination report to show that any improvement in the appellant's disability would be maintained under ordinary conditions of life.  In that regard, the Board notes that VA clinical records include a November 2010 chiropractic clinic visit note in which the examiner stated that although the appellant's disability rating had been decreased, apparently based on his positive response to treatment which had allowed him to increase his activities of employment, the underlying cause of the appellant's acute back flare-ups remained unchanged.  Subsequent clinical records reflect that the appellant continues to receive ongoing treatment for his low back disability, has had multiple visits to the emergency room for exacerbations of back pain, and has recently undergone EMG/NCV testing, all potential indicators that any improvement evident in the appellant's symptoms at the July 2010 VA medical examination were not maintained under the ordinary conditions of life.  

For the foregoing reasons and bases, the Board finds the evidence before the RO at the time of the August 2010 rating reduction decision did not show an actual improvement in the appellant's service-connected low back disability warranting the reduction from 20 percent to 10 percent.  The Board further notes that, in the August 2010 rating decision, the RO made no attempt at comparing the prior manifestations of the appellant's disability to the current manifestations, nor did the RO consider the functional loss caused by the appellant's disability, including the impact on his ability to work.  Under these circumstances, the Board finds that the RO failed to observe the applicable law and regulation in reducing the disability rating assigned for the appellant's service-connected low back disability from 20 percent to 10 percent, effective July 30, 2010.


ORDER

Restoration of the 20 percent disability rating for degenerative disc disease of the lumbar spine from July 30, 2010, is granted, subject to the law and regulations governing the payment of monetary benefits.


REMAND

Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine

In the March 2016 Joint Motion for Partial Remand, the parties noted that during the July 2010 VA medical examination, the appellant reported that he had visited the emergency room on several occasions as a result of his low back disability and had been prescribed bedrest by a physician.  It does not appear that treatment records associated with these emergency room visits have been associated with the record on appeal.  

In addition, in clinical settings, the appellant has reported receiving treatment for low back pain from both a private chiropractor and a private rehabilitation specialist.  See e.g. May 9, 2013, primary care note.  He has also reported receiving treatment from a private orthopedic surgeon and undergoing EMG/NCS secondary to his complaints of pain and tingling and numbness in the lower extremities.  See e.g. March 27, 2014, primary care note.  

VA's duty to assist includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including a VA medical facility and the service department.  38 C.F.R. § 3.159(c)(2).  VA's duty to assist also includes making reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, such as records from a private physician.  Such reasonable efforts will generally consist of an initial request for the records and at least one follow-up request.  38 C.F.R. § 3.159(c)(1).  

In either case, however, it is the claimant's obligation to provide VA with enough information to identify and locate existing records, including the approximate time frame covered by the records, the condition treated, and the custodian or agency holding the records.  Additionally, the appellant must authorize the release of these records in a form acceptable to the custodian.  See 38 C.F.R. § 3.159(c)(2),(3) (2015).  Ultimately, it is a claimant's responsibility to support a claim for VA benefits.  See 38 U.S.C.A. § 5107(a) (West 2014).

Given the relevant nature of the records referenced above, additional evidentiary development is necessary prior to further appellate consideration of the issues on appeal.

In addition, the Board finds that a VA medical examination is necessary to ensure that all symptoms associated with the appellant's service-connected low back disability are appropriately identified and evaluated.  38 C.F.R. § 3.159(c)(4) (2015); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that when a claimant alleges that a disability is worse than when originally rated, and the available evidence is insufficient to adequately evaluate the current state of the condition, VA must provide a new examination).

Entitlement to a total rating based on individual unemployability due to service-connected disability

Since the RO last considered this issue, service connection has been awarded for additional disabilities, acromioclavicular arthritis of the right shoulder with impingement syndrome and right and left left ankle strains.  This determination may have an impact on the issue of the appellant's entitlement to a total rating based on individual unemployability.  

Similarly, resolution of the appellant's pending claim for a rating in excess of 20 percent for his service-connected low back disability may have an impact on the issue of a total rating based on individual unemployability.  Under these circumstances, the issues are inextricably intertwined.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a significant impact upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined).  Thus, the Board finds that the issue of the Veteran's entitlement to a total rating based on individual unemployability should be held in abeyance, pending the readjudication of his claim for a rating in excess of 20 percent for a low back disability and the issuance of a statement of the case.

In addition, the Board notes that pursuant to its February 2015 remand instructions, in a September 2015 letter, the RO sought to obtain the information and evidence necessary to adjudicate the issue of a total rating based on individual unemployability, to include asking the appellant to submit or identify relevant clinical records and return a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.  As acknowledged by his representative in May 2016 written arguments, however, the appellant has failed to respond.  The Board again notes that it is the responsibility of the appellant to support a claim for VA benefits.  See 38 U.S.C.A. § 5107(a) (West 2014).

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should contact the appellant and ask him to identify all sources of medical treatment for his low back disability since June 2008, to include records associated with his reported visits to the emergency room after which he was prescribed bedrest by a physician, as well as records from his private chiropractor, rehabilitation specialist, and orthopedic surgeon.  

2.  After obtaining any necessary authorizations, the AOJ should undertake the necessary efforts to obtain copies of treatment records from any provider identified by the appellant, both VA and private.

3.  After the development requested above is completed, the appellant should be scheduled for a VA medical examination to determine the nature and severity of his service-connected degenerative disc disease of the lumbar spine.  Access to records in the appellant's electronic VA claims files must be made available to the examiner for review in connection with the examination.  

After examining the appellant and reviewing the record, the examiner should specifically delineate all symptoms associated with the appellant's service-connected low back disability, to include any neurological impairment and decreased range of motion, and comment on the severity of those symptoms.  The examiner must also comment on any functional impairment resulting from painful motion, weakness, fatigability, and incoordination.  If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination.  

The examiner should also state whether the appellant's service-connected low back disability results in incapacitating episodes manifested by physician-prescribed bed rest, and if so, the duration of any episodes in the past 12 months should be reported.

4.  After conducting any additional development deemed necessary, the AOJ should readjudicate the claim, including the issue of a total rating based on individual unemployability, considering all the evidence of record.  If the claim remains denied, the appellant and any representative should be issued an appropriate supplemental statement of the case and the opportunity to respond.  The case should then be returned to the Board for appropriate appellate consideration, if in order.

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).




______________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs