Citation Nr: 1628006	
Decision Date: 07/14/16    Archive Date: 07/28/16

DOCKET NO.  11-25 381	)	DATE
	)
	)

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


THE ISSUE

Whether a reduction from 20 percent to 10 percent, effective April 21, 2010, for lumbar spine degenerative disc disease, was proper.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Williams, Counsel 


INTRODUCTION

The Veteran had active military service from January 2003 to February 2005.

This matter comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which reduced the rating for a lumbar spine disability to 10 percent from 20 percent, effective April 21, 2010.

In reviewing this case the Board has not only reviewed the appellant's physical claims file, but also the file on the VBMS/Virtual VA system to ensure a total review of the evidence.


FINDINGS OF FACT

1.  In a May 2010 rating decision, the RO reduced the Veteran's disability rating for lumbar spine degenerative disc disease from 20 percent to 10 percent effective from April 21, 2010; his combined disability rating of 70 percent remained unchanged.

2.  The rating reduction was implemented without full consideration of the requirements and improvement in the ability to function under the ordinary conditions of life and work was not shown.


CONCLUSION OF LAW

The May 2010 rating decision which reduced the rating for a lumbar spine disability from 20 percent to 10 percent, effective April 21, 2010, was not proper and the criteria for restoration of the 20 percent rating are met.  38 C.F.R. §§ 3.105(e), 3.344 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344 (2015).  The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Prior to reducing a veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.  See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2013); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993).  These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  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, it must be determined not only that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work.  See Faust v. West, 13 Vet. App. 342, 350 (2000).

Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation 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 of the contemplated action and furnished detailed reasons therefore.  The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2015).  However, VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the overall amount of compensation payable.  VAOPGPREC 71-91 (Nov. 1991); VAOPGREC 29- 97 (Aug. 1997).  It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable.  Although no reduction notification procedures were undertaken in this case, the Board finds that none were required, as the overall compensation paid to the Veteran remained at 70 percent.  See 38 C.F.R. § 3.105(e) (2015); VAOPGREC 71-91 (Nov. 1991); 57 Fed. Reg. 2,316 (1992) (holding that reduction notice procedures do not apply where there is no reduction in compensation payments being made).

Under 38 C.F.R. § 3.344(a)  ratings for disabilities subject to episodic improvement will not be based on a single examination, and reductions should not be based on an examination that was less thorough and complete than the examination on which the rating was assigned. The provisions of 38 C.F.R. § 3.344(a)  do not apply where, as here, a rating was not in effect for 5 years, or the disability has not stabilized. 38 C.F.R. § 3.344(c) .  Rather, in those cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction.  38 C.F.R. § 3.344(c) (2015). 

It 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.  38 C.F.R. § 4.2 (2015).  Those provisions impose a clear requirement that rating reductions be based on the entire history of the Veteran's disability.  Brown v. Brown, 5 Vet. App. 413 (1993).  .

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.  38 C.F.R. § 4.13 (2015).  In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that the improvement demonstrates improvement in ability to function under ordinary conditions of life and work. Brown, supra; 38 C.F.R. §§ 4.2, 4.10 (2015).  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, supra.

Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595.  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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992).  The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted.  See Brown, supra; Kitchens, 7 Vet. App. 320 (1995).

A May 2010 rating decision reduced the rating for the lumbar spine disability from 20 percent to 10 percent, effective from April 21, 2010.  The 20 percent rating had been assigned by the RO in a February 2007 rating decision and was effective from September 26, 2006.  Thus, the rating had been in effect for less than five years, and the provisions of 38 C.F.R. § 3.344(c) (2015) apply. 

Schedular ratings for disabilities of the spine are provided by application of The General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a (2015).  The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a (2015).

According to the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating 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, 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; a 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 warranted for 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; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 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 for the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2) (2015).

The Board now turns to pertinent evidence of record, focusing on the information available to the RO at the time the reduction was effectuated. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).  A February 2009 VA spine examination report showed forward flexion of the thoracolumbar spine to 80 degrees.  The evidence relied on by the RO included the April 2010 VA examination report that shows that the Veteran reported constant back pain with no radiation.  The Veteran reported that his back pain continued to be symptomatic despite multiple treatment regimens.  He also reported missing four weeks of work in the prior 12 months because of back pain and medical appointments.  Range of motion testing showed forward flexion of the thoracolumbar spine to 80 degrees, extension to 20 degrees, and right and left lateral flexion and rotation to 30 degrees.  Objective evidence of pain was noted with active range of motion, although it was not stated at what degree pain was noted.  Guarding and tenderness of the spine were also reported; however, functional loss was not reported. 

While the February 2009 and April 2010 examinations show that the Veteran had forward flexion of the thoracolumbar spine to 70 and 80 degrees, respectively, and therefore no longer met the criteria for a 20 percent rating, the Board finds that the evidence of record at the time of the Veteran's rating reduction did not clearly demonstrate an improvement in the Veteran's ability to function under ordinary conditions of life and work.  On the contrary, the medical evidence weighs against that proposition as the April 2010 VA examiner specifically reported that the Veteran's lumbar spine disability was progressively worsening.  In fact, it was noted that there were significant effects on the effects of the Veteran's usual occupation resulting in increased absenteeism.  Further, the April 2010 VA examination report shows that the Veteran required additional treatments including occupational and physical therapy and local injection.  

In short, the reduction of the disability rating for the lumbar spine degenerative disc disease to 10 percent is void.  The decision to reduce was not in accordance with law, in part because the RO did not make a finding that the improvement shown demonstrates an improvement in the Veteran's ability to function under ordinary conditions of life and work.

Accordingly, the Board finds that, at the time of the May 2010 rating reduction, the reliance on the April 2010 VA examination report does not established by a preponderance of the evidence that the improvement in the Veteran's range of motion demonstrates improvement in the Veteran's ability to function under ordinary conditions of life and work.  The RO's findings in this case that the Veteran's lumbar spine degenerative disc disease no longer approximated the criteria for a 20 percent rating are not sufficient to sustain a finding that the reduction was proper under § 3.344.  Accordingly, the action to reduce the rating is void, and the 20 percent evaluation for lumbar spine degenerative disc disease is restored as though the reduction had not occurred.  See Schafrath, supra; Brown, supra. 

Thus, the Board concludes that reduction of the 20 percent disability rating was not proper and, thus, should be restored, effective April 21, 2010.  All reasonable doubt has been resolved in favor of the Veteran in making this decision.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 



ORDER

The reduction in evaluation for lumbar spine degenerative disc disease was not proper; restoration of the 20 percent evaluation is granted, effective April 21, 2010.




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


Department of Veterans Affairs