Citation Nr: 1721786 Decision Date: 06/14/17 Archive Date: 06/23/17 DOCKET NO. 12-12 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to restoration of a 40 percent disability rating from February 1, 2011, through February 4, 2016, for a lumbar spine disability. 2. Entitlement to a rating in excess of 40 percent for a lumbar spine disability. 3. Entitlement to a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from September 1978 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2015. A transcript of that hearing is of record. In January 2016, the Board remanded the Veteran's claims for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). FINDINGS OF FACT 1. A September 2010 rating decision proposed to reduce the disability rating assigned for the Veteran's service-connected lumbar spine disability from 40 percent to 20 percent effective February 1, 2011; which was effectuated by a November 2010 rating decision. 2. At the time of the November 2010 rating decision, the medical evidence did not reflect an improvement in the Veteran's lumbar spine disability under the ordinary conditions of his life. 3. Ankylosis of the spine has not been shown; and incapacitating episodes having a total duration of at least six weeks during a 12 month period have not been shown. 4. The evidence of record demonstrates that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The reduction of the Veteran's 40 percent rating for a lumbar spine disability from February 1, 2011, through February 4, 2016, was not proper. 38 U.S.C.A. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105(e)(i), 3.321, 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5242 (2016). 2. The criteria for a rating in excess of 40 percent rating for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2016). 3. The criteria for a TDIU rating are met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran testified before the Board in October 2015. The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds in their totality to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disabilities on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Lumbar Spine Disability Rating The Veteran filed an increased rating for his lumbar spine disability in October 2009. He was granted an increased rating for 40 percent effective October 13, 2009, by an April 2010 ratting decision. However, in September 2010, the RO proposed to reduce his 40 percent rating to 20 percent effective February 1, 2011, which was effectuated by a November 2010 rating decision. The Veteran disagreed with the reduction and this appeal followed. In a March 2016 rating decision, the Veteran was granted an increased rating of 40 percent effective February 4, 2016. As such, the period under appeal is the propriety of the reduction from February 1, 2011, through February 4, 2016. To properly reduce a disability rating requires VA to meet both procedural and substantive requirements. Procedurally, where the reduction in the rating 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 will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. The veteran must also be informed that he may request a predetermination hearing prior to the reduction. § 3.105(e)(i)(1). Following this 60 day period, a 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. The RO satisfied these procedural requirements by issuing a September 2010 rating decision and notice letter. The Veteran was informed of the proposed reduction and all material facts and reasons for it. The notice further informed the Veteran of his right to submit additional evidence on this matter and request a personal hearing. Thereafter, a November 2010 rating decision effectuated the reduction to 20 percent and assigned an effective date of February 1, 2011. Thus, the RO satisfied the requirements by allowing at least a 60-day period to expire before assigning the effective date of the reduction. Reducing a rating also brings concurrent substantive requirements that must be followed. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making this determination, 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. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 213, 413, 420 (1993). In addition, for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating; however, as the Veteran's 40 percent disability rating for his lumbar spine disability was in effect for sixteen months, those additional requirements are not applicable. See 38 C.F.R. § 3.344. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. 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 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. 38 C.F.R. §§ 4.2, 4.10, 4.13; Faust v. West, 13 Vet. App. 342, 350 (2000). Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not appear to show that the Veteran has experienced any IVDS for his lumbar spine disability. At a March 2010 VA examination, he denied having any IVDS. At the July 2010 VA and November 2010 examinations, the examiners indicated that the Veteran did not have IVDS of the lumbar spine. While the February 2014 VA examiner indicated that the Veteran had IVDS, he also indicated that the Veteran did not have any IVDS in the past 12 months. At a February 2016 VA examination, the examiner indicated that the Veteran did not have IVDS of the lumbar spine. Regardless, the record does not show that the Veteran has been prescribed any bed rest to treat his lumbar spine disability during the course of his appeal, and there is no contention to the contrary. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate and the Veteran's lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Turning to the evidence of record, the Veteran's treatment records show that he has consistently been treated for low back pain. In March 2010, the Veteran was afforded a VA examination. He reported difficulty standing and walking. He also reported wearing a back brace. On examination, he demonstrated flexion to 20 degrees with pain. Repetitive use testing resulted in flexion limited to 10 degrees. In July 2010, the Veteran was afforded a VA examination. He reported worsening back pain. On examination, he was using a cane and appeared to be placing a great deal of weight on his cane. The examiner observed that the Veteran appeared to need the cane as he took slow, caution steps. He demonstrated flexion to 46 degrees with pain. Repetitive use testing did not result in any additional limitation of motion. In November 2010, the Veteran was afforded a VA examination. He continued to report worsening back pain. On examination, he demonstrated flexion to 90 degrees with pain. Repetitive use testing did not result in any additional limitation of motion. In May 2012, the Veteran's treatment records show that he demonstrated flexion to 20 to 40 degrees, extension to 0 to 10 degrees, left and right lateral flexion to 20 degrees, right rotation to 20 degrees, and normal left rotation. In February 2014, the Veteran was afforded a VA examination. He continued to report worsening back pain. On examination, he demonstrated flexion to 75 degrees. However, the examiner reported X's in all other range of motion findings and reported that the Veteran was unable to perform repetitive use testing. At the October 2015 hearing, the Veteran testified that at the latest VA examinations, the examiner interviewed him, but did not physically examine him and based their findings on his medical records and not on an examination. He supported his assertion by pointing out that the February 2014 VA examiner marked "X's" in all range of motion findings but flexion. As such, the Board remanded the claim for a new VA examination. In February 2016, the Veteran was afforded a VA examination. He reported progressive back pain for years. On examination, his forward flexion was limited to 30 degrees. The examiner indicated there was evidence of pain with weight-bearing. The Veteran was unable to perform repetitive use testing due to pain. After a complete review of the Veteran's claims file, the competent and credible evidence of records shows that the Veteran's lumbar spine disability has not improved. The Veteran's low back disability was consistent with a 40 percent rating at the March 2010 VA examination. While the March 2010, July 2010, and February 2014 VA examinations, the examiners found that lumbar spine flexion was more extensive than initially shown on the 2010 examination, the Veteran credibly testified that the examiners did not complete full examinations. At the February 2016 VA examination, the Veteran once again demonstrated findings consistent with a 40 percent rating. The findings of the March 2010 VA examination are more consistent with the findings of the February 2016 VA examination than with the March 2010, July 2010, and February 2014 VA examinations. In addition, the Veteran is competent to describe his own lumbar spine disability symptomatology and the Board finds that his statements are credible. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Finally, VA treatment records show consistent back symptomology with no improvements. Moreover, regardless of the range of motion findings between 2010 and 2016, there is simply not sufficient evidence to show that the range of motion impairment actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. As the Veteran testified, he continued to experience significant back and leg pain, was reliant on a cane, and had no ability to return to work. As such, the evidence of record does not show an improvement in the Veteran's lumbar spine disability. Accordingly, the RO's reduction of the rating for a lumbar spine from 40 percent to 20 percent from April 1, 2011, through February 4, 2016, was improper. Therefore, the 40 percent rating should be restored. As the Veteran now has been granted a 40 percent rating for his lumbar spine disability throughout the entirety of the period on appeal, he is in receipt of the maximum rating allowed based range of motion. The only ratings available are a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating for ankylosis of the entire spine. However, there is no medical evidence showing ankylosis and the Veteran has not argued to the contrary. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, where, as here, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, a rating in excess of 40 percent for a lumbar spine disability is not warranted. As such, the claim is denied. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or a single accident will be considered as one disability for TDIU purposes. Id. Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. On October 8, 2010, the Veteran asserted that he was no longer able to work. He reported he was unemployed due to his service-connected disabilities. In this case, the Veteran is currently service connected for a number of disabilities, an acquired psychiatric disability rated at 30 percent prior to September 7, 2011, and 50 percent from September 7, 2011, a lumbar spine disability rated at 40 percent disabling, and right lower extremity radiculopathy rated at 10 percent disabling. The Veteran's service connected disabilities combined for a rating of 60 percent prior to September 7, 2011, and a rating of 70 percent from September 7, 2011. However, the Veteran was granted service-connection for his acquired psychiatric disorder and right lower extremity radiculopathy both as secondary to his service-connected lumbar spine disability. Accordingly, these conditions are considered a single disability for TDIU purposes as they share a common etiology. See 38 C.F.R. § 4.16(a). Given this consideration, the Veteran meets the schedular threshold for TDIU consideration prior to September 7, 2011, as his disabilities resulting from a common etiology are rated at 60 percent. Id. Furthermore, he meets the schedular requirements from September 7, 2011, as he has at least on disability rated at 40 percent or more and a combined rating of 70 percent or more. As such, he has met the schedular requirements for the entire period on appeal. At the October 2015 hearing, the Veteran testified that he was unable to work due to his service-connected disabilities. He testified that he stopped working because he had become physically unable to work, which exacerbated his acquired psychiatric disability. He testified he last worked in 2009. He testified that he had been granted SSA disability due to his lumbar spine disability and acquired psychiatric disability. At a November 2010 VA examination for his lumbar spine disability, the examiner reported that the Veteran's disabilities resulted in significant problems with lifting and carrying. At a November 2010 VA examination for his acquired psychiatric disability, the examiner reported that the Veteran's disability would make interactions with other people somewhat more difficult but would not preclude employment. SSA records show he was granted SSA disability benefits in May 2014 due to his lumbar spine disability and acquired psychiatric disability. At a February 2014 VA examination for his lumbar spine disability, the examiner reported that the Veteran's disability prevented him work working on a production line and would be unable to perform physical work that involved lifting, carrying, bending, and standing more than 15 minutes. At a February 2014 VA examination for his acquired psychiatric disability, the examiner indicated that his acquired psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. At the February 2016 VA examination for his lumbar spine disability, the examiner reported that the Veteran's lumbar spine disability adversely affected occupational tasks that required prolonged standing, sitting, walking, climbing, or lifting. The Board acknowledges that some VA examiners have suggested that the Veteran is capable of a limited range of work. The November 2010 VA examiners reported that the Veteran's disabilities resulted in significant problems with lifting and carrying and interactions with other people were somewhat more difficult. The February 2014 VA examiners reported that the Veteran's disabilities prevented him work working on a production line, he would be unable to perform physical work that involved lifting, carrying, bending, and standing more than 15 minutes, and had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The February 2016 VA examiner reported that the Veteran's disabilities adversely affected occupational tasks that required prolonged standing, sitting, walking, climbing, or lifting. All of these medical professionals explained the reasoning behind their opinions. Furthermore, the Veteran was granted SSA disability due to his lumbar spine disability and acquired psychiatric disability. As such, the Board concludes that the evidence for and against TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran's behalf, and hold that TDIU is warranted. As such, the Veteran's claim is granted. ORDER The 40 percent disability rating for the Veteran's lumbar spine disability from February 1, 2011, through February 4, 2016, is restored. A rating in excess of 40 percent for a lumbar spine disability is denied. TDIU is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs