Citation Nr: 1801677 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-34 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE The propriety of the reduction in the rating for posttraumatic myofascial strain of the thoracic spine from 40 percent to 20 percent, effective August 1, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to September 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The May 2013 rating decision reduced the rating for posttraumatic myofascial strain of the thoracic spine from 40 percent to 20 percent, effective August 1, 2013. The rating reduction at issue arose from a VA examination and evaluation of the thoracic spine disability prompted by the Veteran's December 2012 claim (including a statement from his representative) seeking "an increased rating for post traumatic spine myofascial strain." The appellate issue of entitlement to restoration of the reduced rating is distinct from the issue of entitlement to an increased rating for the same disability. The United States Court of Appeals for Veterans Claims (Court) has emphasized that "rating reduction cases" are separate from "rating increase cases." Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). The appeal before the Board clearly arises from the Veteran's disagreement with May 2013 rating decision that implemented a rating reduction. An increased rating claim is not currently in appellate status before the Board (an appeal of a rating reduction can only raise the rating reduction dispute into appellate status). Indeed, the Veteran's December 2012 claim seeking an increased rating for posttraumatic myofascial strain of the thoracic spine does not appear to have been adjudicated by the RO. This claim is hereby referred to the RO for appropriate action to resolve the December 2012 claim for an increased rating for posttraumatic myofascial strain of the thoracic spine. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Following a January 2013 VA examination (with a February 2013 addendum), a March 2013 rating decision proposed to reduce (from 40 to 20 percent) the rating for the Veteran's posttraumatic myofascial strain of the thoracic spine; he was notified of the proposal by a March 2013 letter; the reduction was implemented (effective August 1, 2013) by a May 2013 rating decision. 2. The 40 percent rating for the Veteran's posttraumatic myofascial strain of the thoracic spine had been based upon limitation of forward flexion of the thoracolumbar spine, and the reduction of the rating to 20 percent, effective April 1, 2011, was based on a VA examination that did not clearly show improvement in the functional limitation of forward flexion of the thoracolumbar spine. CONCLUSION OF LAW The RO's decision to reduce the rating for posttraumatic myofascial strain of the thoracic spine from 40 percent to 20 percent was not proper, and restoration of a 40 percent rating is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks the restoration of a 40 percent rating for a service-connected thoracic spine disability, arguing that the RO's May 2013 reduction of the rating was improper. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. From March 24, 2009 to August 1, 2013, the Veteran's service-connected posttraumatic myofascial strain of the thoracic spine was rated 40 percent disabling by the RO under the provisions of Diagnostic Code 5237 for lumbosacral strain. In a May 2013 rating decision, the RO reduced the rating to 20 percent under the same Diagnostic Code, effective from August 1, 2013. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent rating requires thoracolumbar spine forward flexion greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires thoracolumbar spine forward flexion 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 1. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 4. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 5. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to factors such as disability causing less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination. 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Id. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40. Furthermore, to be considered adequate, VA examinations are required to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the 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 will be prepared setting forth all material facts and reasons. 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 payment should be continued at its present level. Final rating action will reduce or discontinue the compensation 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. Under 38 C.F.R. § 3.344(a), ratings for disabilities subject to episodic improvement will not be based on a single examination, and reductions should not be based on an examination that was less thorough and complete than the examination on which the rating was assigned. The provisions of 38 C.F.R. § 3.344(a) do not apply where, as here, a rating was not in effect for 5 years, or the disability has not stabilized. 38 C.F.R. § 3.344(c). The 40 percent rating for prostate cancer was in effect from March 24, 2009 to August 1, 2013. Regarding the propriety of the reduction, the Board must focus on the evidence available to the RO at the time the reduction was implemented, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. In October 2009, the RO issued a rating decision awarding an increased 40 percent rating for service-connected posttraumatic myofascial strain of the thoracic spine. The decision cited that VA examination findings showed that the Veteran reported pain "extending from the mid back to the low back area." The decision explained that "[a] 40 percent evaluation is assigned based on forward flexion of the thoracolumbar spine found at 26 degrees on VA examination and a combined total range of thoracolumbar motion at 90 degrees." The January 2013 VA examination report shows that the Veteran reported "getting steroid shots in his back the past 6 months .... He reports some relief from the injections, it is a temporary improvement only." The VA examiner reported range of motion testing findings including forward flexion to 45 degrees with "objective evidence of painful motion" beginning at 45 degrees, and (confusingly) 0 degrees of extension with "objective evidence of painful motion" beginning at 10 degrees. The VA examiner noted that after repetitive use testing, the Veteran's forward flexion ended at 40 degrees and his extension ended at 0 degrees. The VA examiner found that there was "functional loss and/or functional impairment of the thoracolumbar spine (back)," due to "[l]ess movement than normal," and "[p]ain on movement." In February 2013, the VA examiner authored an addendum to the January 2013 VA examination report. In this addendum, the VA examiner states: "I observed objective evidence of pain at 10 degrees of flexion." Additionally, the VA examiner commented: "More likely than not, veteran did not put forth full effort of extension during the PT ROM evaluation. Possibly due to not wanting to feel pain as he did during his physical examination." The VA examiner also remarked that "[t]he range of motion evaluation was for the lumbar spine only, we are not able to measure ROM of the thoracic spine." The Board finds that the 40 percent rating that had been assigned for the Veteran's back disability was assigned on the basis of the Veteran's diminished forward flexion of the thoracolumbar spine. Although evidence of record suggests that the Veteran's thoracolumbar range of motion impairment represents both service-connected thoracic spine disability and non-service-connected lumbar spine impairment, the Board finds this was true when the 40 percent rating was assigned as well as when it was reduced. The 40 percent rating was assigned based on the Veteran's limitation of thoracolumbar motion without distinguishing or apportioning impairment attributable to non-service-connected disability. The Court has held that when it is not possible to separate the effects of a service-connected condition and a nonservice-connected condition, the provisions of 38 C.F.R. § 3.102 mandate that reasonable doubt on any issue is to be resolved in the Veteran's favor, and that all signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board finds that there is no sufficiently clear evidence to distinguish or exclude non-service-connected lumbar spine disability from the thoracolumbar spine impairment associated with the service-connected thoracic spine disability. Thus, the Board will, for the limited purpose of this decision, attribute all of the thoracolumbar spinal range of motion impairment to his service-connected thoracic spinal disability. Looking at the limitation of motion that served as the basis of the 40 percent rating, the Board has carefully considered whether the January 2013 VA examination report (as amended in February 2013) sufficiently establishes that the impairment actually improved. Reading the January 2013 VA examination report together with its February 2013 addendum, the Board finds that the report essentially indicates that the Veteran had "objective evidence of pain at 10 degrees of flexion," and that the examiner found functional loss / impairment of the thoracolumbar spine due to less movement than normal and pain on movement. The Board finds that these findings from the amended VA examination report, reasonably read together in the light most favorable to the Veteran, suggests functional limitation of forward flexion of the thoracolumbar spine to 10 degrees (or, at least, to 30 degrees or less as contemplated by a 40 percent disability rating). Although some of the presentation of the January 2013 / February 2013 VA examination report findings are unclear or confusing such that other interpretations of the report may be possible, the Board finds that such uncertainty does not significantly support reducing the Veteran's disability rating when a reasonable reading of the report supports continued entitlement to the 40 percent rating. The Board additionally observes that the findings pertinent to characterizing the extent of the Veteran's impairment of thoracolumbar range of motion presented in the January 2013 VA examination report (including as amended in February 2013) did not include the types of detailed findings the Court found to be necessary for adequacy in Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that a March 2013 statement of the Veteran's private doctor (Dr. Dietrich) includes a discussion of the Veteran's cervical and lumbar spine with significant symptoms. This evidence does not otherwise clarify the details of the service-connected thoracic spine disability. Other medical treatment reports of record include indications of pertinent symptomatic impairment and treatment specific to his thoracic spinal disability (including noting "worsening thoracic region pain" in a January 2013 report of "The Rehab Doctors"), but these reports do not present clinical range of motion details pertinent to the rating criteria. The Board finds that the medical treatment records from the time leading to the rating reduction do not support a finding that the reduction in rating was proper. On careful review of the pertinent evidence of record, and with the benefit of the doubt being afforded to the Veteran as is required by the law, the Board cannot find that the preponderance of the evidence sufficiently clearly demonstrated material improvement in the service-connected thoracic spine at the time of the May 2013 decision reducing the rating for that disability. See 38 C.F.R. §§ 4.3, 4.7. The 40 percent rating that was assigned for the thoracic spine disability contemplated functional limitation of forward flexion to no more than 30 degrees, and the Board finds that the evidence in this case does not clearly show a functional improvement warranting a reduction at the time of the May 2013 RO reduction decision. ORDER Restoration of a 40 percent rating for the Veteran's posttraumatic myofascial strain of the thoracic spine is granted, subject to the regulations governing payment of monetary awards. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs