Citation Nr: 1802569	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  10-44 035	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1. Whether the rating reduction from 40 percent to 10 percent for service-connected degenerative disc disease under Diagnostic Code (DC) 5243 effective June 18, 2016, was proper. 

2. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease.

3. Entitlement to a total disability rating based on individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Victoria A. Narducci, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from June 1968 to January 1993. The Veteran received a number of medals and awards while in service, most notably the Combat Infantryman Badge, Meritorious Service Medal, Republic of Vietnam Gallantry Cross with Palm, Presidential Unit Citation, Republic of Vietnam Gallantry Cross with Gold Star, Meritorious Unit Citation, and the Valorous Unit Citation, among others. 

This matter before the Board of Veterans' Appeals (Board) is on appeal from a December 2012 rating decision and a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky (Agency of Original Jurisdiction (AOJ)).

The Veteran testified at a Board hearing before the undersigned in August 2017. A transcript of the proceeding is of record. 

The Board further notes that, in a May 2017 decision, the AOJ reduced the Veteran's 40 percent rating for degenerative disc disease of the lumbar spine to 10 percent disabling effective June 18, 2016. A claim stemming from a rating reduction action must be phrased as whether the reduction was proper, not whether the Veteran is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, the Veteran's appeal also encompasses his claim of entitlement to a higher initial rating since the inception of the appeal. Thus, the Board has rephrased this issue on the title page to reflect the separate increased rating and rating reduction issues and the fact that staged ratings have been assigned. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999).


FINDINGS OF FACT

1. A May 2017 rating decision implemented the disability rating reduction from 40 percent to 10 percent for degenerative disc disease of the lumbar spine, effective June 18, 2016. 

2. At the time of the June 18, 2016 effective date of the reduction, the 40 percent rating for the Veteran's lumbar spine had been in effect for more than ten years. 

3. The AOJ rating decision, which reduced a disability rating for degenerative disc disease of the lumbar spine from 40 percent to 10 percent effective June 18, 2016, was based on an inadequate VA examination. 

4. The Veteran's degenerative disc disease is not productive of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, nor is it productive of unfavorable ankylosis of the entire thoracolumbar spine; and, there is no lay or medical evidence of separately compensable neurological abnormalities associated with the spine. Thus, a rating higher than 40 percent is not warranted. 

5. The AOJ granted the Veteran's claim for TDIU effective August 1, 2016, which is the day following the Veteran's last day of earning substantially employment, and thus the claim is no longer before the Board for adjudication. 


CONCLUSIONS OF LAW

1. The reduction of the rating for service-connected degenerative disc disease from 40 percent to 10 percent was improper, and restoration of the 40 percent disability rating effective June 18, 2016 is warranted. 38 U.S.C. §§1155, 5103 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344 (2017). 

2. The criteria for a rating in excess of 40 percent for service-connected degenerative disc disease have not been met. 38 U.S.C. §§1155, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5243 (2017).

3. The claim for TDIU is moot and thus dismissed. 38 U.S.C. §7105(d)(5) (2012); 38 C.F.R. §4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). The Veteran has raised argument with respect to the adequacy of VA examination. However, based upon the restoration of benefits below and his description of symptoms, the Board finds that additional VA examination is not warranted.

II. Criteria and Analysis
Rating Reduction

When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. §3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. §3.344.

With regard to the initial question, when 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, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. §3.105(e), (i). 

If additional evidence is not received within that period, 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 a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. §3.105. 

With regard to the initial question, the Board observes that the rating reduction did not result in any reduction of VA compensation being paid to the Veteran as the overall, combined disability rating was not reduced. Thus, the procedural protections of 38 C.F.R. §3.105(e) do not apply. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran).

Accordingly, the remaining question is whether the reduction in the disability rating is warranted based on the medical and lay evidence of record.

A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. §1155. Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). 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. See Faust v. West, 13 Vet. App. 342, 350 (2000).

It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

Briefly summarized, the Veteran's service-connected lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Under these criteria, a 10 percent rating is warranted where there is 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; 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 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 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 requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 

VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The provisions of 38 C.F.R. § 4.40 state that 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45.

A review of the May 2017 rating reduction reveals that, in reducing the Veteran's disability rating for his degenerative disc disease, the AOJ considered the results from a November 2012 VA examination and June 2016 VA examiner reflecting range of motion findings greater than 60 degrees of forward flexion and combined range of motion greater than 120 degrees which, in their opinion, showed "sustained improvement."  

At the June 2016 VA examination, the Veteran described an overall worsening of low back pain to the point where he could not sit up straight. The examiner measured forward flexion to 70 degrees which did not change with repetitive testing. However, the examiner could not say without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time as "Veteran was not examined immediately after repetitive use and could not replicate ROM." Furthermore, the examiner could not say without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare ups as "Veteran was not examined during a flare up and could not replicate ROM."

Upon review of the process by which the AOJ implemented its rating reduction, the Board immediately notes an essential missing component to the analysis underlying its decision - the lack of an adequate examination measuring "functional loss" pursuant to 38 C.F.R. §§ 4.40 and 4.45.  The June 2016 VA examination did not fully measure whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during flares as "Veteran was not examined immediately after repetitive use and could not replicate ROM" and "Veteran was not examined during a flare up and could not replicate ROM."

The Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) specifically explained that such an analysis was inadequate as direct observation of functional impairment was not a prerequisite for offering an opinion. Rather, the Court stated that VA's Clinician's Guide contemplates that the examiner would elicit sufficient information from the Veteran regarding the extent of motion loss and then provide an opinion. Failure to do so renders the examination report inadequate. Thus, the Veteran's rating reduction was predicated on an inadequate VA examination report which voids the rating reduction decision.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1. 

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999).

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. §4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). 

In the case at hand, the Veteran was rated at 40 percent prior to the June 18, 2016 effective date of reduction, and sought a rating increase. Pursuant to 38 C.F.R.  4.71a, in order for the Veteran to be rated higher than 40 percent, he must have unfavorable ankylosis of the entire thoracolumbar spine, which would give him a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 

There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Fifth, 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.

The Formula for Rating Intervertebral Disc Syndrome (IVDS) provides for a 60 percent rating when the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. See 38 C.F.R. §4.71a, Note (1).

A review of the Veteran's examinations indicates that his spine does not show ankylosis, which prevents the Board from finding he qualifies for a rating above 40 percent under the general rating formula. Furthermore, he has not had incapacitating episodes lasting a total duration of at least six weeks during the past year, barring a rating of 60 percent under the formula for rating IVDS. Additionally, he does not contend that he is suffering from any neurological problems as a result of his degenerative disc disease. The Veteran specifically denied these aspects of disability at his hearing. For these reasons, entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease is not warranted. 
	
TDIU

Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. At the Veteran's August 2017 hearing, the Veteran indicated he would be filing a claim for TDIU based on his disabilities, which he subsequently did. The Board notes that the AOJ granted the Veteran's claim for TDIU effective August 1, 2016, in a rating decision dated November 2017. The effective date of award assigned is the day following his last reported day of earning substantially gainful employment. See VA Form 8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) received August 2017. As such, the Board finds that the TDIU claim is no longer before the Board for adjudication and is thus moot.  



ORDER

The 40 percent rating for degenerative disc disease of the lumbar spine is restored effective June 18, 2016.

Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease.

The issue of entitlement to a TDIU is moot, and is therefore dismissed.




____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs