Citation Nr: 1753775	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-02 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Whether a reduction in disability rating from 40 percent to 10 percent, effective November 1, 2012, for spondylolisthesis was proper.

2. Entitlement to a rating in excess of 40 percent for spondylolisthesis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1972 to February 1976.

This matter comes to the Board of Veteran's Appeals (Board) on appeal from an August 2012 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Detroit, Michigan. 

In January 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.  


FINDINGS OF FACT

1. The preponderance of the evidence does not show actual improvement of the Veteran's spondylolisthesis. 

2. The Veteran's spondylolisthesis has been manifest by flexion greater than 30 degrees but not greater than 60 degrees, with no objective evidence of ankylosis.


CONCLUSIONS OF LAW

1. The criteria for restoration of a 40 percent disability rating for spondylolisthesis effective November 1, 2012, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.344 (2016). 


2. The criteria to a rating in excess of 40 percent for spondylolisthesis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Rating reduction from 40 percent to 10 percent

In resolving this issue, the Board must first address whether VA followed the procedural protections for reductions in evaluations when it reduced the Veteran's spondylolisthesis rating from 40 percent to 10 percent. 

When reduction in the rating of a service-connected disability 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 the latest address of record of the contemplated action and furnished detailed reasons.  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) (2016).

However, VA's General Counsel has held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable.  It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Therefore, where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable.  See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of section 3.105(e) do not apply when there is no change in the overall disability rating).

In this case, a July 2009 rating decision granted service connection for the Veteran's spondylolisthesis and assigned a 40 percent rating, effective September 17, 2008.  In a May 2012 rating decision, the Veteran's spondylolisthesis rating was proposed to be reduced from 40 percent to 10 percent, effective November 1, 2012. Here, the Veteran's total compensation payable was 80 percent from October 2012 to November 2012. Following the Veteran's reduction for his spondylolisthesis, his total payable compensation decreased to 70 percent from November 1, 2012. Thus, the added notice required under 38 C.F.R. § 3.105 applied.

A rating decision containing all of the information required by 38 C.F.R. § 3.105(e), which include the proposed decrease from 40 percent to 10 percent for his spondylolisthesis, was sent to the Veteran and his representative in May 2012. The Veteran was afforded 60 days to respond to the May 2012 rating decision which contained all information pursuant to 38 C.F.R. § 3.105(e).  Then, in August 2012, a final rating reduction was sent to the Veteran and his representative. 

Having found that the procedural protections of 38 C.F.R. § 3.105(e) do apply, and have been satisfied, the Board turns to the question of whether the rating reduction for the Veteran's spondylolisthesis was factually appropriate.

The Veteran contends that the rating of his spondylolisthesis should not have been reduced from 40 percent to 10 percent.  Specifically, he disagrees with the May 2012 VA examination report on which the reduction is based, asserting that it does not take into consideration that he was wearing a back brace during the entirety of the examination, that the back brace renders flexion beyond 80 degrees impossible, and that there was no actual improvement of his spondylolisthesis. At the time of the RO's August 2012 rating decision, the Veteran's 40 percent evaluation for his spondylolisthesis had not been in effect for more than 5 years.

The provisions of 38 C.F.R. § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more).  They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.  See 38 C.F.R. § 3.344(c) (2016).  
Although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have continued for long periods at the same level, the Court has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations "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."  Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13); see also Tucker v. Derwinski, 2 Vet. App. 201 (1992).

The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence.  First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability."  Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations.  Third, it must be determined whether the 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. 

The Board must first consider the May 2012 VA examination on which the Veteran's 40 percent disability rating is based.  At that time, the Veteran reported constant sharp and radiating pain, warm sensations down to his lower extremities, and tingling in his toes.  He described constant sharp pain rated 6/10 that radiated into his posterior right lower extremity and ankle. He reported that he was employed full time as a generator specialist, but that he has lost at least 10 days of work due to his back.  The Veteran's activities of daily living were affected, including lifting and reaching.  The Veteran reported flare-ups and that he wore a back brace on a daily basis.  

On physical examination, the Veteran's forward flexion was noted to be 80 degrees with pain beginning at 75 degrees. He had extension to 20 degrees with pain, lateral flexion bilaterally to 25 degrees with pain, and rotation bilaterally to 25 degrees with pain. The Veteran was able to perform repetitive motion and no additional limitation in range of motion was noted. The examiner noted the Veteran suffered from interference with sitting, standing and/or weight-bearing. The Veteran was noted to have intervertebral disc syndrome (IVDS) with incapacitating episodes of at least 1 week but less than 2 weeks within the prior 12 months. 

The Board finds that the May 2012 VA examination does not show actual improvement of the Veteran's spondylolisthesis. First, the examiner did not address that the Veteran was wearing his back brace during the examination. Although the examiner noted that the Veteran wears his back brace "daily" and "regularly," the record is silent as to whether the Veteran was wearing his back brace during the examination or how that may have impacted the examiner's evaluation of the Veteran.  The Board notes that the Veteran is competent to testify that he was wearing a back brace during the examination. The Board further notes that the Veteran is credible when testifying to wearing a back brace, and assigns this significant probative weight. 

Again, 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.  Here, for the reasons discussed above, the Board finds that the May 2012 VA examination upon which the reduction was based does not clearly show an improvement in the Veteran's spondylolisthesis. 

Accordingly, according the Veteran the benefit of the doubt, the Board finds that a restoration of a 40 percent disability rating for spondylolisthesis prior to November 1, 2012, is warranted.

II. Entitlement to rating in excess of 40 percent for spondylolisthesis 

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A.  § 1155; 38 C.F.R. § 4.1 (2016).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2015); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2016); see also 38 C.F.R. §§ 4.45, 4.59 (2016). 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 Veteran's spondylolisthesis has been assigned a 40 percent rating.  Pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or the combined range of motion is greater than 120 degrees but not greater than 235 degrees; or where muscle spasms, 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 where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where muscle spasm or guarding is 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 where forward flexion of the thoracolumbar spine is 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note (5).  

The General Rating Formula provides further guidance in rating diseases or injuries of the spine.  In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code.  Id. at Note (1).

Alternatively, intervertebral disc syndrome (IVDS) can be rated under Diagnostic Code 5243 and the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula).  IVDS may be evaluated under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  Id. at Note (6).

Pursuant to the IVDS Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months.  A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months.  A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the    past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An "incapacitating episode" is defined as 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, IVDS Formula, Note (1).

An April 2011 VA treatment record shows that the Veteran was diagnosed with bilateral L5 pars defects with grade 1 anterolisthesis. There was limited assessment for instability on the extension, and that anterolisthesis may increases slightly on flexion. The Veteran was also diagnosed with degenerative disc disease at this time. The treatment provider noted limited visualization during this time.

Further in April 2011, VA treatment records indicate that the Veteran reported suffering from hot flash sensations into both lower extremities, and that the pain in his right buttock radiated laterally up to the knee. He reported urgency of urination for the prior 6 to 7 months. On physical evaluation, the Veteran was noted to have a normal gait and slightly decreased sensory distribution in his right posterior calf. Further, the treatment provider noted the Veteran had "SLR @ 60 degrees on right side in S1 distribution up to knee." At this time the Veteran was diagnosed with grade I spondylolisthesis at L5-S1, moderate to severe L5-S1 degenerative disc disease, mild multilevel degenerative changes in his lumbar spine with bilateral L5 spondylolysis, sacral insufficiency fracture, facet OA, 10 mm spondylolisthesis at L5/S1 with mass effect on exiting L5 and S1 nerve roots.

A September 2011 VA treatment record shows the Veteran reported suffering from "hot flashes down the right leg at times" with "pain shooting down back of both legs lasting about 1 to 2 minutes." He reported more pain that day than prior days. On physical evaluation, the treatment provider noted the Veteran had forward flexion of 30 degrees. 

During a March 2017 VA examination, the Veteran reported constant pain in his lower back that radiates down his right leg into his foot. He also experienced cramping in his left calf when walking, and a burning pain in his right leg. He stated he believed his pain was exacerbated by bending and twisting, and that he experienced pain at night while sleeping. The Veteran also stated he had pain in his midback that started about 1-2 years prior to the examination, and that pain was different than his lower back. The Veteran reported flare-ups that caused intense pain approximately 3 or 4 times weekly. He also reported inability to lift heavy objects, inability to sit for prolonged periods of time, and inability to pick up items off of the floor.

Physical examination revealed localized tenderness.  There was no evidence of muscle atrophy, abnormal muscle tone, weakness, or ankylosis.  Range of motion testing of the thoracolumbar spine revealed forward flexion to 45 degrees, extension to 10 degrees, bilateral flexion to 30 degrees, bilateral rotation to 20 degrees, with evidence of pain on motion. There was no additional imitation of motion after three repetitions. The Veteran was diagnosed with low back strain with spondylolisthesis and spinal stenosis. He was also diagnosed with thoracic spine diffuse idiopathic skeletal hyperostosis. It was noted that the Veteran has IVDS with no incapacitating episodes. The examiner further noted that the Veteran regularly uses a brace for lumbar support.

After review of the evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran's spondylolisthesis is not warranted at any point during the period under review. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of lower back pain, which increased with bending forward, and reaching and lifting overhead, and inability to sit for prolonged periods of time or lift heavy objects. However, the Board finds that the objective medical evidence of record is of greater probative weight as to the Veteran's level of impairment than his assertions.  Moreover, even considering his subjective complaints of pain, the Board finds that the evidence does not more nearly approximate forward flexion of the thoracolumbar spine limited to less than 30 degrees but not greater than 60 degrees such that a higher rating would be warranted, even after consideration of pain and the other symptoms described in DeLuca.  See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for  a higher rating specified in the Rating Schedule).  

The Board notes that, at worst, forward flexion was limited to 30 degrees, with no additional limitation of motion after repetition. Additionally, as there is no evidence of ankylosis, a higher evaluation is not warranted on that basis.  Moreover, there is evidence of incapacitating episodes requiring treatment and bed rest prescribed by a physician of at least one week but less than two weeks approximating a rating using the Veteran's IVDS at 10 percent.  See 38 C.F.R. § 4.71a, IVDS Formula.  

The Board has also considered whether the Veteran's cervical spine disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2016); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability.  See Thun v. Peake, 22 Vet. App. 111, 118 (2008).

Here, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher or separate ratings for more severe symptoms. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40 (2016); Mitchell, 25 Vet. App. 32, 37.  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability and interference with weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  Thus, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.  

The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107  (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).

Accordingly, entitlement to a disability rating in excess of 40 percent for the Veteran's service-connected spondylolisthesis is denied.  


ORDER

The 40 percent disability rating for spondylolisthesis is restored, effective November 1, 2012, subject to the criteria governing the payment of monetary benefits.

A rating in excess of 40 percent for spondylolisthesis is denied.



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

Department of Veterans Affairs