Citation Nr: 1801630 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-15 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether the reduction of the rating for lumbar spine degenerative disc disease from 40 percent to 10 percent, effective July 1, 2014, was proper. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Michel C. Daisley, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1995 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 and April 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ); the hearing transcript is of record. FINDINGS OF FACT 1. The evidence does not reflect an improvement in the Veteran's lumbar spine degenerative disc disease under the ordinary conditions of life, and post-reduction evidence shows the functional effects of the disability have, at best, remained static. 2. The Veteran's service-connected lumbar spine degenerative disc disease and major depressive disorder preclude the ability to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a restoration of a 40 percent disability rating for lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107, 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.1 - 4.16, 4.71a, Diagnostic Code 5295-5243 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Propriety of the Reduction 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) (2017). The beneficiary will be notified at his or her latest address of record of the contemplated action and be furnished detailed reasons therefore, and will also be given 60 days for the presentation of additional evidence to show that compensation payments should continue at their present level. Id. The beneficiary will also be informed that he or she may request a predetermination hearing prior to the reduction. 38 C.F.R. § 3.105(i)(1). Following the 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. 38 C.F.R. § 3.105(e). Reducing a rating also brings concurrent substantive requirements that must be followed. When 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; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Board notes that 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. 38 C.F.R. § 3.344(a), (b); see 38 C.F.R. § 3.343. The regulations impose a clear requirement that 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 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 not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, 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. 227 (1992). In this case, the RO satisfied the procedural requirements by issuing the Veteran a September 2013 rating decision that proposed to reduce the rating and a notice letter. These informed the Veteran of the proposed reduction and all material facts and reasons for it. The notice letter further informed the Veteran of his right to submit additional evidence on the matter and of his right to request a personal hearing. Thereafter, an April 2014 rating decision effectuated the reduction and assigned an effective date of July 1, 2014. Thus, the RO satisfied the requirements of allowing at least a 60-day period to expire before assigning the effective date of the reductions. The procedural requirements required for a rating reduction have been met. The remaining analysis will focus on the substantive requirements of the reduction. The 40 percent rating for lumbar spine degenerative disc disease was reduced effective July 1, 2014. As of this date, the 40 percent rating had been in effect for approximately four years and six and a half months. Thus, the rating was in effect for less than five years; 38 C.F.R. § 3.344(c) is applicable, and the added protections of § 3.344(a), (b) are not applicable. See Brown, 5 Vet. App. at 417 (limiting the holding of Lehman and finding the five-year provision was not satisfied by a rating that had been in effect for four years and ten months); c.f. Lehman v. Derwinski, 1 Vet. App. 339 (1991) (the five-year provision is merely a guideline, and a veteran was entitled to added protections of § 3.344 where his rating had been in effect for four years and 363 or 364 days). A reexamination disclosing improvement in this disability will warrant a reduction in the rating. 38 C.F.R. § 3.344(c). Nonetheless, for the following reasons, the Board finds that the reduction of the rating for lumbar spine degenerative disc disease was improper. A June 2009 VA examination report shows the back disability manifested in pain, stiffness, and limitation of motion. The pain was of moderate severity, dull and achy in type, and occurred for a period of three to seven days once a month. In pertinent part, range of motion testing showed forward flexion was limited to 75 degrees with no objective evidence of pain on active motion. The report noted that the back disability significantly impairs the Veteran's occupational functioning as he cannot lift or carry heavy objects without pain. It was also noted that the disability causes moderate effects to chores, exercise, and sports, and mild effects to recreation. An October 2011 VA examination report shows an increase in severity. The disability was again manifested by pain, stiffness, and limitation of motion. Additionally, fatigue was noted, and the pain was now constant, not occurring once a month as was noted on the prior examination report. The Veteran also reported that he experiences flares of pain that prevent yard work and impair his ability to get around. He noted that he is unable to stand or walk for long periods of time and that sitting bothers him as well. Range of motion testing showed, in pertinent part, that forward flexion was reduced to 25 degrees with objective evidence of painful motion. It is based upon this objective measurement that the RO increased the rating from 20 percent to 40 percent in an October 2011 rating decision. See 38 C.F.R. § 4.71a, Diagnostic Code 5295-5243. A December 2011 VA examination report shows the Veteran reported similar symptoms as during the October 2011 VA examination. The disability manifested in pain, stiffness, and limitation of motion. The pain was of moderate severity and constant. While the examiner noted there were no flare-ups, the Veteran's statements contradicted this finding as he indicated that physical activity and stress would exacerbate his pain. The Board finds that the examination report is not adequate for rating purposes with regard to range of motion testing or to the examiner's conclusion as to functional loss and occupational impairment resulting from the disability. The report shows the examiner believed the Veteran provided diminished effort on range of motion testing. As a result, it appears that the examiner indicated that range of motion was normal in all planes and that there was no objective symptomatology or impairment related to the condition. The Veteran underwent a VA examination in August 2013. He reported flare-ups of pain that had been increasing in frequency; they now occurred twice a week. He reported that the constant pain prevents him from doing physically demanding tasks; it also makes it difficult to concentrate. He reported that he has to change positions often in order to relieve back discomfort. Range of motion testing showed, in pertinent part, that forward flexion was limited to 75 degrees. The examiner did not provide an opinion as to whether functional loss causes additional limitation of motion on flare-ups. The Board finds this evidence weighs in favor of a restoration of the 40 percent rating because it is not shown that improvement in the Veteran's forward flexion reflected actual improvement in his ability to function under the ordinary conditions of life and because pertinent post-reduction evidence tends to show that the Veteran's disability level remained, at best, static. The objective test results of the August 2013 VA examination show an improvement in forward flexion; however, the disability resulted in a similar functional impact. Constant pain and stiffness continued to be present. The disability impaired physical functioning, to include lifting and carrying as may be required in a workplace. Flares of pain that increased functional loss also continued to be present. Pertinent post-reduction evidence also shows that there was no improvement in the ability to function under the ordinary conditions of life. During an August 2016 VA examination, the Veteran reported constant moderate pain and stiffness. He reported flares of pain with prolonged sitting, standing, squatting, bending, and heavy lifting. He reported he had difficulty completing yard work or housework. He reported he could not run or play with his dog, lift heavy things, or mow the lawn. During an August 2017 Board hearing, the Veteran testified that his pain has always been constant and dull and achy, and that on certain days the severity of the pain flares. Board Hr'g Tr. 4-5. He reported that his disability has not improved over time and that it has actually worsened. He disagreed with the findings of the 2011 and 2013 VA examiner's with respect to his range of motion results, and indicated that the constant effect of his disability on occupational functioning was evidence that it had not improved. Id. The Veteran is competent to relate the extent of his functional impairment. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His assertions are consistent with the medical evidence of record, which does show that, at best, his functional impairment has remained static. Accordingly, the Board finds his assertions credible. The cumulative evidence does not reflect material improvement in the Veteran's ability to function under the ordinary conditions of life. The preponderance of the evidence does not support the reduction of the rating for lumbar spine degenerative disc disease from 40 percent to 10 percent. Accordingly, the reduction was improper. Restoration of the 40 percent rating effective July 1, 2014 is warranted. II. TDIU Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one such disability, this disability shall be ratable at 60 percent or more; 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 or more. 38 C.F.R. § 4.16(a). The Veteran contends his unemployability is caused by his service-connected back and psychiatric disabilities. VA received a claim for a TDIU on November 17, 2011. At the time of the filing, the Veteran was service connected for lumbar spine degenerative disc disease (rated 40 percent), major depressive disorder (rated 30 percent), hypertension (rated 10 percent), and sciatic neuropathy of the left extremity associated with lumbar spine degenerative disc disease (rated 10 percent). The combined rating for these disabilities was 70 percent. Accordingly, he had a single disability rated 40 percent and additional disability to bring the combined rating to 70 percent or more. Therefore, schedular evaluation of a TDIU is appropriate for the entire claim period. The evidence shows that the Veteran did not complete high school but earned his General Equivalency Diploma (GED). His pre-service work history consisted of physical labor, such as landscaping. See, e.g., August 2017 Board Hr'g Tr. 13. Post-service, he was employed as a car salesman on an Air Force Base in Japan - essentially, he was selling cars to then-current service members. Id. at 8. He was terminated from this employment in 2004 and has not worked since. Id. He has no additional education or training, and he cannot effectively use computers. Id. at 13-14. A June 2009 VA examination report shows that his back disability caused significant effects on occupational functioning. The Veteran could not lift or carry heavy objects due to pain. During an August 2013 VA examination, the Veteran reported that his back disability prevented him from doing anything physically demanding, and the constant pain made it difficult to concentrate and complete tasks. He reported that his pain flares twice a week and that he is much less mobile during flare-ups. He also reported that he had to change positions often to relieve low back discomfort. An August 2016 VA examination report showed that the Veteran experiences flares of pain with prolonged sitting, standing, bending, heavy lifting, and squatting. Flares occur one to two times per day lasting hours, and are relieved by medication. The Veteran also reported that his disability causes functional loss manifested in an inability to do yardwork or run and play with his dog, it limits the ability to do housework, and it does not allow for lifting heavy objects. Based on the VA examinations of record, the Board finds that the Veteran's back disability has precluded employment of a physical-type throughout the claim period. In addition to the physical effects of the back disability noted above, the Board notes that the back disability has also caused cognitive impairment, as manifested in difficulty concentrating and completing tasks due to pain, and the Veteran also asserted that, while he was still employed, it caused increased absenteeism. Regarding the Veteran's service-connected psychiatric problems, the record contains a letter dated February 2003 from his supervisor at his car sales job. The supervisor wrote that the Veteran experienced mood swings that prevented him from performing at an appropriate level. The supervisor indicated that the Veteran was unable to exhibit a stable level of behavior for more than a week or ten days. During such periods, he was a valuable asset to the company, but he was not when his mood turned and he experienced what would be described as anxiety or panic attacks. Currently, the Veteran no longer experiences such mood swings as they are controlled by medication. Nonetheless, he continues to experiences symptoms such as depressed mood, low energy, chronic sleep impairment, anxiety, a tendency to socially isolate, and difficulty establishing and maintaining effective relationships. He has experienced such symptoms throughout the claim period, and they have been of moderate severity. A medical opinion dated November 2012 by a certified vocational evaluator indicated that his current psychiatric symptoms prevented him from interacting with co-workers, supervisors, or the public in an appropriate productive manner required for long term employment. As a result, the author determined that it was with a high degree of certainty that the Veteran would be unable to obtain or maintain substantially gainful employment. During the August 2017 Board hearing, the Veteran testified that he did not think he could work in an office environment. As pertinent to the psychiatric problems, he stated that he is not skilled at using computers, and being required to use one would give him anxiety. Board Hr'g Tr. 13-14. He reported that he also could not interact with peers in an office setting as he tends to feel that people are giving him a hard time even if they are not. Id. The Veteran does not have a college-level education. His only experience with non-physical labor is working as a salesman, and he has no computer skills. His psychiatric disability causes symptomatology that would interfere with his ability to communicate with other people, either in the role of a salesman or in a sedentary work environment. Moreover, a vocational evaluator has opined that the psychiatric problems are of such severity that he would be precluded from interacting with co-workers, supervisors, or the public in an appropriate productive manner that would be required for long term employment. Resolving any and all reasonable doubt in favor of the Veteran, the Board finds that his service-connected psychiatric problems, when combined with his cognitive defects caused by his lumbar spine disability, would preclude sedentary employment, alternatively described as employment of a non-physical type. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 In sum, the preponderance of the evidence weighs in favor of the Veteran's claim. His service-connected lumbar spine and major depressive disorder preclude the ability to secure and maintain substantially gainful employment. A TDIU is warranted. ORDER The 40 percent rating for lumbar spine degenerative disc disease is restored effective July 1, 2014. A TDIU is granted. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs