Citation Nr: 1625214 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 10-13 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Propriety of the reduction from 40 percent to 10 percent for degenerative disc disease of the lumbar spine, effective June 8, 2009. 2. Propriety of the reduction from 10 percent to noncompensable for tender abdominal scarring from hernia repairs, effective June 8, 2009. 3. Entitlement to a rating in excess of 30 percent, for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood, claimed as anxiety and depression. 4. Entitlement to a rating in excess of 40 percent for degenerative disc disease, lumbar spine. 5. Entitlement to a rating in excess of 10 percent for tender abdominal scarring from hernia repairs. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1969 and from January 1985 to September 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In June 2013 the Veteran testified at a Travel Board hearing before the undersigned; a transcript of that hearing is of record. In May 2015 the Board determined that the disability rating for the Veteran service-connected degenerative disc disease (DDD) of the lumbar spine (low back disability) was properly reduced from 40 percent to 10 percent, effective June 8, 2009 and that the rating for the Veteran's service-connected tender abdominal scarring from hernia repairs (tender abdominal scarring) was properly reduced from 10 percent to 0 percent, effective June 8, 2009. The Veteran appealed these matters to the United States Court of Appeals for Veterans Claims (Court). In April 2016, the Court granted a Joint Motion for Partial Remand (JMPR). The basis for the remand was essentially that the Board failed to adequately explain whether any material improvement was sustained and whether material improvement was reasonably certain to be maintained under the ordinary conditions of life. In April 2016 the Veteran submitted a waiver of initial consideration of additional evidence by the RO. Regarding increased ratings for low back disability and tender abdominal scarring, since, by this decision, the Board restored the rating for the service-connected low back disability to 40 percent and the rating for the service-connected tender abdominal scarring to 10 percent, both effective from June 8, 2009 (the effective date of the reduction), the issues before the Board therefore have been recharacterized to reflect the restoration of the ratings, i.e., entitlement to a rating in excess of 40 percent for low back disability and entitlement to a rating in excess of 10 percent for tender abdominal scar. The issues of entitlement to a rating in excess of 30 percent for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood, claimed as anxiety and depression, a rating in excess of 40 percent for low back disability, and in excess of 10 percent for tender abdominal scarring are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A July 2009 rating decision reduced the rating assigned for the Veteran's low back disability from 40 percent to 10 percent; the overall evidence of record at that time did not show sustained improvement to the extent of demonstrating that the Veteran's underlying low back disability had improved; and features of the Veteran's low back disability were not accurately appreciated or described given the examiner did not view the Veteran's disability in light of the whole recorded history. 2. A July 2009 rating decision reduced the rating assigned for the Veteran's tender abdominal scarring from 10 percent to 0 percent; the overall evidence of record at that time did not show sustained improvement to the extent of demonstrating that the Veteran's underlying tender abdominal scarring had improved; and features of the Veteran's abdominal scarring were not accurately appreciated or described given the examiner did not view the disability in light of the whole recorded history. CONCLUSIONS OF LAW 1. The decision to reduce the rating for the Veteran's low back disability from 40 percent to 10 percent was not proper; restoration of a 40 percent rating is warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344(c), 4.7, 4.71a, Diagnostic Codes 5243- 5237 (2015). 2. The decision to reduce the rating for the tender abdominal scarring from 10 percent to 0 percent was not proper; restoration of a 10 percent rating is warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344(c), 4.7, 4.71a, Diagnostic Code 7804 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the reduction claims, in light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required in view of the disposition herein and any defect in the notice or assistance provided to the Veteran constituted harmless error. A discussion of the procedural requirements set forth in 38 C.F.R. § 3.105(e) is also unnecessary for this reason. Legal Criteria, Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the Veteran's record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Propriety of Rating Reductions Initially, it is noted that where a reduction in an 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 proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(c). In this regard, although the July 2009 rating action increased the combined evaluation for the service-connected disorders to 100 percent effective March 24, 2008, (by granting service connection for PTSD with a disability rating of 30 percent effective that date), and reduced the combined rating to 90 percent effective June 8, 2009 (by reducing the evaluation for low back disability and tender scarring, abdomen, from repair of an inguinal hernia), the RO accomplished this in a single rating decision. In other words, the reduction in this case did not actually result in a reduction of compensation payments currently being made, as the Veteran continues to receive the same 90 percent combined evaluation he relied on before the reduction as he does after. In VAOPGCPREC 71-91, VA's Office of General Counsel held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable. Rather, it is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Here, the Veteran's monthly monetary compensation received by him from VA never actually decreased. In a line of cases addressing staged ratings, the U.S. Court of Appeals for Veterans Claims (Court) and U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have held that where ratings are changed in a single decision that does not effectuate an actual decrease in the compensation the Veteran receives each month, there is no reduction. In O'Connell v. Nicolson, 21 Vet. App. 89 (2007) the Court examined a claim in which the Board, in assigning staged ratings for a disorder, simultaneously increased the base rating assigned by the RO for a period of time, and then decreased it. The Court explained that there was no diminished expectation with which to be concerned, and no reduction in benefits to contest. Id. at 93. The Federal Circuit agreed with this reasoning in Reizenstein v. Shinseki, 583 F.3d 1331, 1337-38 (Fed. Cir. 2009), noting that benefits for past periods of disability are distributed in a lump sum that is paid on top of the Veteran's ongoing disability compensation (As would be the case here, where the Veteran was found retroactively entitled to a combined 100 percent rating until the effective date of the reduction.) In Hamer v. Shinseki, 24 Vet. App. 58 (2010), the Court further explained that the purpose behind 38 C.F.R. § 3.105(e) is to enable Veterans to adjust to the diminished expectation. Id. at 61-62. Given that the July 2009 rating action simultaneously assigned a retroactive combined 100 percent evaluation (effective March 24, 2008) and a reduction of the combined evaluation to 90 percent (effective June 8, 2009), and as the Veteran's combined disability evaluation has at no relevant point been reduced below 90 percent, the Board finds that the provisions of 38 C.F.R. § 3.105(e) do not apply. Regarding rating deductions, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344 (c); 3.343(a). In the present case, the 40 percent rating for the Veteran's low back disability, reduced to 10 percent and the rating for his abdominal scar reduced to 0 percent in the July 2009 rating decision on appeal, had been in effect since October 1, 2006; i.e., for less than five years. Thus, the provisions of 38 C.F.R. § 3.344(c) apply, and an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. Moreover, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown v. Brown , 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown, 5 Vet. App. at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 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. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a March 2007 rating decision, service connection was granted for low back disability and assigned a 40 percent rating effective October 1, 2006 under 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5237; and a 10 percent rating was assigned for tender abdominal scarring effective October 1, 2006 under 38 C.F.R. § 4.118 Diagnostic Code 7804. As noted, the 40 percent rating for low back disability and the 10 percent rating for tender abdominal scarring had been in effect since October 1, 2006; i.e., less than five years. Therefore, a single reexamination disclosing improvement in the disability was sufficient to warrant reduction in the ratings. See 38 C.F.R. § 3.344(c). Low Back Disability The diagnostic codes for rating diseases and injuries of the spine are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). (Intervertebral disc syndrome will be rated under the general rating formula for the spine or under a formula for disc syndrome based on incapacitating episodes.) Id. 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. A 20 percent evaluation 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. Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. (The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined motion for the thoracolumbar spine is 240 degrees.) 68 Fed. Reg. 51,454, 51,456-58 (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 68 Fed. Reg. 51454, 51456 (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2)). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately. 68 Fed. Reg. 51,454, 51,456 (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1). Pursuant to Diagnostic Code 5243 (regarding intervertebral disc syndrome (IVDS)), a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. A rating can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. The Board also must consider pain, weakness, excess motion, incoordination, excess fatigability, and other functional limitation factors when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The previous 40 percent rating for the Veteran's low back disability was assigned in a March 2007 rating decision and was based on a January 2005 in-service examination in which it was noted that the Veteran's forward flexion was limited to 20 degrees, extension was limited to 5 degrees, left lateral flexion was limited to 10 degrees, right lateral flexion was limited to 20 degrees, left lateral rotation was limited to 10 degrees, and right lateral rotation was limited to 20 degrees. The Veteran's range of motion was noted to be painful, but with no additional limitation of motion upon repetitive motion due to factors such as pain, weakness, or fatigue. The March 2007 rating decision noted that the Veteran's low back disability showed a likelihood of improvement and that the assigned rating was therefore not considered permanent and was subject to future review. A June 2009 VA examination was provided to ascertain whether the Veteran's low back disability had improved. The June 2009 VA examination, which was used as the basis for decreasing the Veteran's disability rating for low back disability from 40 percent to 10 percent shows the Veteran's claims file was not available to the examiner for review. The examiner noted she reviewed VA electronic records (which was not a complete record). The Veteran reported the medical history of his low back disability. He reported having an MRI [magnetic resonance imaging] with a history of two herniated discs. He stated the MRI results were sent to the RO. The Veteran described his low back pain as a constant, chronic ache that would radiate down the left leg and ankle laterally to the last three toes. His pain level on an average day was 6/10; but after walking for 5 to 10 minutes, the pain level would increase to 10/10 and he would not be able to walk at all. He walked unaided most of the time but would use a cane when he contemplated walking more than 100 yards. He was able to walk 200 yards before he would need to stop and rest. He was able to walk for 10 minutes. He was able to stand for 3 to 4 minutes before he would need to shift his weight. He was able to sit with constant shifting of his weight; he needed to take pressure off the left side. He had a back brace that he did not wear often because it was bulky and uncomfortable. He demonstrated weakness and denied stiffness. He experienced numbness. He was unsteady with a history of falls. His last fall was 3 weeks prior; the left leg gave out and he leaned onto a tree to break the fall. He had difficulty getting in and out of a car. When he climbed stairs, he used the railing to propel himself upward placing more weight on the right side. Standing in the shower for any length of time caused pain. He had difficulty putting on his shoes, socks, underwear and trousers. He could drive with constant repositioning, but would not drive for any length of time. He could drive for 45 minutes before he would need to get out of the car; the left buttock would become numb. His treatment consisted of physical therapy, which he last had in October 2008, and Lidoderm patches, which he stated helped minimally (decrease the pain level to 4-5/10). The narcotic pain medication was not effective and he had minimal effect with Motrin 600mg. He was employed full-time as a military funeral coordinator. His duties required him to attend 2 funerals per day (including burials). At times he had to stand for long periods of time which aggravated his back pain. The examiner upon objective testing noted that the Veteran had a normal spine, limbs, posture, and gait. The position of the Veteran's head and curvatures of the spine had symmetry in appearance, and there was symmetry and rhythm of the spinal motion. The examiner noted objective evidence of painful motion with grimacing, but no objective evidence of spasm, weakness, or tenderness. The Veteran exhibited forward flexion to 80 degrees with pain beginning at 80 degrees, extension to 15 degrees with pain beginning at 15 degrees, right and left lateral flexion to 18 degrees with pain beginning at 18 degrees, and right and left lateral flexion to 30 degrees with pain beginning at 30 degrees. The Veterans combined range of motion was 191 degrees. The examiner further noted that the Veteran's spine was painful on motion, but that range of motion of joint function was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive motion. There was an absence of fatigue, weakness, lack of endurance, and incoordination. There was no muscle spasm, guarding, or localized tenderness severe enough to result in abnormal gait, abnormal spinal contour, reversed lordosis, or abnormal kyphosis. Finally the examiner noted there were no postural abnormalities, fixed deformity (ankylosis-favorable or unfavorable), or abnormality of the musculature of the back. There were no diagnostic and clinical tests performed. The examiner noted (as had been reported by the Veteran) that MRI had been sent to the RO. There is no indication that the examiner reviewed that MRI. [Notably, the January 2005 MRI of the lumbar spine, of record at the time of the June 2009 VA examination diagnosed disc herniation at L4/5 and a larger disc herniation at L5/S1 with resulting narrowing of the central spinal canal and foraminal regions.]. The diagnosis was DDD of the lumbar spine with subjective complaints of radiculopathy, subjective complaints of pain, and mild to moderate functional loss or limitations. At the June 2013 hearing the Veteran stated that the examiner did not address his abnormal gait and posture and also failed to note his medical history with regard to his back. He stated that previous examiners had found his range of motion to be far more limited. The Veteran stated further that his back interfered with his ability to work and was worse than what a rating of 10 percent reflects. After considering the pertinent medical history, as detailed above, the Board finds that the reduction of the Veteran's low back disability rating from 40 percent to 10 percent, in the July 2009 rating decision, was not sufficiently supported by the evidentiary record. Although the June 2009 VA examination showed significant improvement with regard to the Veteran's range of motion, there was no demonstration of actual improvement overall. Also, the examiner did not review the Veteran's claims file, which included the Veteran's medical history and other relevant medical information (i.e., 2005 MRI) concerning his low back disability. This finding seems to undermine the completeness of the examination. As noted, a factor in determining whether a reduction in a disability rating is warranted is whether the examinations reflecting such change are based on a thorough examination. See Brown, 5 Vet. App at 421. As the June 2009 VA examiner did not review relevant evidence (found in the Veteran's claims file), features of the Veteran's lumbar spine disability are not accurately appreciated or described given the examiner did not view the Veteran's disability in light of the whole recorded history. See 38 C.F.R. § 4.2. As noted above, in a rating reduction case, VA has the burden of establishing improvement, as opposed to the situation in a claim for increase. See Peyton, 1 Vet. App. at 286. While acknowledging the decision of the RO, the Board believes that standard had not been herein met. The Board finds that there was insufficient basis for finding that the Veteran's symptoms had improved on any sustainable level, and thus, the reduction from 40 to 10 percent was neither supportable nor appropriate under pertinent cited guidelines. Tender Abdominal Scarring Under the criteria for rating scars, Diagnostic Code 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear. Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) are rated 10 percent disabling. Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent disabling. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent disabling. Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent disabling. 38 C.F.R. § 4.118. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm.) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are painful or unstable. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under Diagnostic Code 7805, scars are evaluated for any disabling effects not considered in a rating under Diagnostic Codes 7800 to 7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118. The Veteran's tender abdominal scarring has been rated under Diagnostic Code 7804. Service treatment records show that in April 1997 the Veteran underwent repair of a recurrent incision hernia with mesh. During the procedure, the lower portion of the midline incision was opened and the cicatrix was removed. The incision terminated approximately a centimeter above the umbilicus. The Veteran noted that in 2003 he experienced pain on the right side of the groin area, which indicated an inguinal hernia, which was repaired at a hospital in Connecticut. In January 2004 the Veteran underwent a CT[computed tomography] of the abdomen. The impression was small hiatal hernia. It was also noted that there had been a prior ventral hernia repair and there were some clips seen in the region of the celiac axis/porta hepatis. The previous 10 percent rating for the Veteran's tender abdominal scarring was assigned in a March 2007 rating decision and was based on a January 2007 VA examination of the Veteran's abdominal scarring. The examination report noted there was a well-healed surgical scar on the abdomen from around mid-sternum to upper umbilicus along the midline measuring 20 x 1 cm. Inguinal hernia repair scars were also well-healed but tender. Thus, there were objective findings of residual painful scarring that was painful to palpation on the abdomen from the hernia repair procedures. The March 2007 rating decision noted that the Veteran's tender abdominal scarring showed a likelihood of improvement and that the assigned rating was therefore not considered permanent and was subject to future review. A June 2009 VA examination was provided to ascertain whether the Veteran's abdominal scarring had improved. The June 2009 VA examination, which was used as the basis for decreasing the Veteran's disability rating for tender abdominal scarring from 10 percent to 0 percent shows the Veteran's claims file was not available to the examiner for review. The examiner noted she reviewed VA electronic records (which was not a complete record). The Veteran reported a history of having abdominal surgery in 1991 (while on active duty) for his gastroesophageal reflux disease. He twice had complications from the surgery with herniation. He also had hernia surgery in 1994. In 2008 he reported that he went to a specialist for increased abdominal pain and was told that the scar was enveloping the nerves. He was told that he had an extensive scar tissue and would need to have more surgery. He described symptoms of pain, skin breakdown and other problems. He reported having chronic achy pain in the scar, with the pain level at 3/10. He expressed that because of the scar, he does not like to remove his shirt. On examination the examiner noted that the Veteran had a well-healed abdominal vertical scar, starting 4cm below the xyphoid process measuring 24cm x 1.5cm. The scar was not painful on examination. There was no skin breakdown, no limitation of motion or other limitation of function caused by the scar, no inflammation, no edema, and no keloid formation. The scar was superficial. The diagnosis was abdominal scar with anesthesia along the scar, subjective complaints of pain under the scar and mild to moderate functional loss or limitations. At the June 2013 hearing the Veteran stated that he had an incisional hernia scar that was tender upon touch. He stated that he has 3 scars, 1 approximately 12 inches and the others are 3 inches on each side and all are painful and tender. He wears a Lidocaine patch over the scar for pain. The Veteran stated that he told the examiner that his abdominal scar was tender when she touched it; he stated further that "she disagreed obviously." The Veteran expressed that the examiner did not address the amount of pain he dealt with as a result of internal adhesions associated with the repair of his hernias. The Veteran noted that this internal scarring caused him a great deal of pain. He stated that his scar associated with the surgery from the hernia repairs was worse than what his current noncompensable rating reflects. After considering the pertinent medical history, as detailed above, the Board finds that the reduction of the Veteran's tender abdominal scarring rating from 10 percent to 0 percent, in the July 2009 rating decision, was not sufficiently supported by the evidentiary record. Although the June 2009 VA examiner noted the Veteran's abdominal scar was well-healed and not painful, she also, in her diagnosis acknowledged the Veteran's subjective complaints of pain under the scar and noted he had mild to moderate functional loss or limitations due to the scars. As such, actual improvement of the tender abdominal scarring is not demonstrated. Also, the examiner did not review the Veteran's claims file, which included the Veteran's medical history and other relevant medical information (i.e., the number and type of hernia surgeries the Veteran has undergone) concerning residual scars as a result of hernia surgeries. This finding seems to undermine the completeness of the examination. As noted, a factor in determining whether a reduction in a disability rating is warranted is whether the examinations reflecting such change are based on a thorough examination. See Brown, 5 Vet. App at 421. As the June 2009 VA examiner did not review relevant evidence (found in the Veteran's claims file), features of the Veteran's abdominal scarring are not accurately appreciated or described given the examiner did not view this disability in light of the whole recorded history. See 38 C.F.R. § 4.2. As noted above, in a rating reduction case, VA has the burden of establishing improvement, as opposed to the situation in a claim for increase. See Peyton, 1 Vet. App. at 286. While acknowledging the decision of the RO, the Board believes that standard had not been herein met. The Board finds that there was insufficient basis for finding that the Veteran's symptoms had improved on any sustainable level, and thus, the reduction from 10 to 0 percent was neither supportable nor appropriate under pertinent cited guidelines. ORDER The reduction of the rating for the Veteran's low back disability from 40 percent to 10 percent, effective June 8, 2009, was improper; the 40 percent rating is restored, subject to the laws and regulations governing the award of monetary compensation benefits. The reduction of the rating for the Veteran's tender abdominal scarring from 10 percent to 0 percent, effective June 8, 2009, was improper; the 10 percent rating is restored, subject to the laws and regulations governing the award of monetary compensation benefits. REMAND The Board finds that the development requested by the Board's May 2015 remand directives was not fully completed regarding the Veteran's claim for a rating in excess of 30 percent, for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood, claimed as anxiety and depression. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Id. Thus, in the present case additional development must be conducted. The May 2015 remand directives mandated that the VA examination conducted to determine the current degree of severity of the Veteran's service-connected acquired psychiatric disorder include in the examination report a full psychiatric diagnostic assessment according to the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV) criteria, including a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. A review of the August 2015 VA examination reflects that the examining psychologist did not assign a GAF score and therefore provided no explanation of the significance of the current levels of psychological, social and occupational functioning that would support such a score. Thus, the August 2015 VA examination report is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board finds that an addendum VA psychiatric examination report is warranted. The Board notes that the Veteran has not been afforded notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) with respect to his claims for increased ratings for low back disability and tender abdominal scarring. The Board has searched the record thoroughly and find no such notice pertinent to these claims. On remand the AOJ should send the proper notice pertinent to claims for increased ratings. In light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran receives regular treatment for his service-connected disabilities from VA. Thus, on remand, updated VA treatment records from the VA, to include all associate outpatient clinics, since August 2015, should be obtained and associated with the Veteran's record. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record. Accordingly, the case is REMANDED for the following action: 1. The AOJ should issue a VCAA notice letter for the claims for increased ratings for low back disability and tender abdominal scarring in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A; 38 C.F.R. § 3.159, Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and any other applicable legal precedent. 2. The AOJ should contact the Veteran and obtain the names and addresses, and approximate dates of treatment of all medical care providers who treated him for his psychiatric disorder, low back disability and tender abdominal scarring. After he has signed the appropriate releases, those records, to specifically include all records of VA treatment since August 2015, should be obtained and associated with the Veteran's record. All attempts to procure records should be documented. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the record. He and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. The RO should arrange for the Veteran's record to be returned to the VA psychologist who conducted the August 2015 VA mental disorder examination for the Veteran and provide an addendum examination report that addresses the following: Provide a full psychiatric diagnostic assessment according to the DSM-IV criteria, including a GAF score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning, which support the score. [The Board notes that VA implemented DSM-V, effective August 4, 2014. VA Secretary has determined that DSM-V does not apply to claims certified to the Board prior to August 4, 2014, as in this case. Thus, DSM-IV is still the governing directive for this appeal.] If the August 2015 VA psychologist is unavailable obtain the addendum examination report from another qualified VA examiner. The examiner must provide a complete rationale for all opinions expressed and conclusions reached. 4. Thereafter, readjudicate these claims. If the claims are not granted in full, provide the Veteran a supplemental statement of the case; and, if in order, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs