Citation Nr: 1803850 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-24 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased disability evaluation for low back injury with recurrent mechanical lumbosacral strain, rated as 40 percent disabling. 2. Whether the reduction of the evaluation of service-connected low back injury with recurrent mechanical lumbosacral strain from 40 percent to 20 percent disabling, effective May 1, 2015, was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1987 to September 1987 and from June 1998 to July 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2014. A transcript of the hearing has been associated with the record. The Board observes that the Veteran submitted a VA Form 9 (Appeal to Board of Veterans' Appeals) in December 2015 as to the issue of entitlement to clothing allowance under the provisions of 38 C.F.R. § 3.810(b), and that the Veteran's representative submitted an informal hearing presentation on this issue in November 2016. However, none of the procedural documents (to include: claim, rating decision, notice of disagreement or statement of the case) are of record, and the issue has not been certified to the Board. As such, the Board finds that the issue is not for adjudication here. The RO is requested, however, to associate any relevant procedural documents and evidence with the record. Nevertheless, the Board observes that the issue of the propriety of the reduction of the Veteran's evaluation for his service-connected low back injury with recurrent mechanical lumbosacral strain from 40 percent to 20 percent disabling, effective May 1, 2015, is inextricably intertwined with the Veteran's claim of entitlement to an increased disability rating for his service-connected low back injury with recurrent mechanical lumbosacral strain. Thus, the issue of whether the reduction was proper must be addressed as part of the adjudication of the claim for an increased rating. See Harris v. Derwinski, 1 Vet. App. 180. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As a preliminary matter, the Board points out that, in certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a), (b). Those sections provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Under 38 C.F.R. § 3.344(a), (b) the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown , 5 Vet. App. 413 (1993). In this case, the Veteran's 40 percent rating for low back injury with recurrent mechanical lumbosacral strain was assigned from November 23, 2009 to April 30, 2015. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction). Therefore, the requirements pertaining to reductions of ratings that have been in effect for at least five years are applicable. 38 C.F.R. § 3.344(a),(b). Because the issue in this case is whether the RO was justified in reducing the Veteran's 40 percent rating, rather than whether the Veteran was entitled to "reinstatement" of the 40 percent rating, VA is required to establish, by a preponderance of evidence and in compliance with 38 C.F.R. § 3.344(a), that a rating reduction was warranted. See Brown, 5 Vet. App. at 420; see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). The Board notes that the Veteran does not bear the responsibility to demonstrate that he is entitled to retain the higher evaluation. Brown 5 Vet. App. at 418. As the Veteran's claim for an increased disability rating was pending at the time of the reduction, the Board cannot find that sustained improvement in the Veteran's service-connected low back injury with recurrent mechanical lumbosacral strain had been established. To the contrary, the Veteran's disability picture was unresolved at the time of the proposed reduction. In this regard, the Board observes that the Veteran not only disagreed with the proposed reduction, but asserted that his service-connected low back injury with recurrent mechanical lumbosacral strain worsened since the most recent, December 2011 VA examination. As such, the RO must consider whether the Veteran was entitled to a rating in excess of 40 percent for the entire rating period on appeal (since October 2010). See 38 C.F.R. § 3.344. As noted, the Veteran asserts that the symptoms of his service-connected low back injury with recurrent mechanical lumbosacral strain are more severe than presently evaluated. The Board observes that Veteran was most recently afforded a VA examination in December 2011, and that he has not been provided with a VA examination which considers the current severity of his service-connected low back injury with recurrent mechanical lumbosacral strain. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In this regard, the Board points out that the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations 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. Thus, the CAVC's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the December 2011 VA examination report, as well as the more recent June 2014 Disability Benefits Questionnaire provided by the Veteran, reveals that range of motion testing for the thoracolumbar spine in active and passive motion, weight-bearing, and nonweight-bearing situations was not conducted. In light of Correia, the Veteran must be provided a new VA examination, which provides range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the Veteran's thoracolumbar spine, as well as accurately evaluates the current severity of his service-connected low back injury with recurrent mechanical lumbosacral strain, on appeal. Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claim on appeal should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to obtain and associate with the record copies of the Veteran's VA treatment records, if any, associated with the claims on appeal. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA spine examination to ascertain the current severity and manifestations of the Veteran's service-connected low back injury with recurrent mechanical lumbosacral strain. The claims file should be made available to the examiner for review in connection with the examination. The examination should include a statement as to the effect of the Veteran's service-connected low back injury with recurrent mechanical lumbosacral strain on his occupational functioning and daily activities. In particular, the VA examination must include range of motion testing for the thoracolumbar spine in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 3. After completing all indicated development, the RO should readjudicate the claim for an increased disability rating for the service-connected low back injury with recurrent mechanical lumbosacral strain in light of all the evidence of record. If the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).