Citation Nr: 1804505 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-06 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether the reduction of the evaluation for service-connected residuals of a back injury (back disability) from 40 percent to 20 percent, effective March 24, 2012, was proper. 2. Whether the reduction of the evaluation for service-connected cervical disk disease (neck disability) from 30 percent to 20 percent, effective June 1, 2012, was proper. 3. Entitlement to an increased rating for a back disability. 4. Entitlement to an increased rating for a neck disability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from May 1983 to July 1983, and on active duty from February 1984 to January 1987 and from September 1990 to June 1991. The Veteran had service in Southwest Asia, and was awarded the Army Achievement Medal and Kuwait Liberation Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from March 2012, April 2012, and January 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran had a hearing before a Decision Review Officer in April 2015. A transcript of that proceeding has been associated with the claims file. The issues of entitlement to increased ratings for a back disability and a neck disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An April 2012 rating decision reduced the 40 percent disability rating assigned for a back disability to 20 percent, effective March 24, 2012. 2. A March 2012 rating decision reduced the 30 percent disability rating assigned for a neck disability to 20 percent, effective June 1, 2012. 3. At the time of the reduction, the 40 percent rating for the Veteran's back disability had been in effect since August 5, 1999, more than 5 years; the 30 percent rating for the Veteran's neck disability had been in effect since February 8, 2008, less than 5 years. 4. Sustained improvement of the Veteran's service-connected back and neck disabilities has not been shown. 5. The evidence is at least in relative equipoise regarding whether the Veteran is precluded from obtaining or maintaining gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The reduction of the disability evaluation from 40 percent to 20 percent effective March 24, 2012 for a back disability was improper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.85 (2017). 2. The reduction of the disability evaluation from 30 percent to 20 percent effective June 1, 2012 for a neck disability was improper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.85 (2017). 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The appeals adjudicated below have been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of these issues, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. Rating Reductions The Veteran was originally granted service connection for a back disability in a November 1992 rating decision, and a July 2001 rating decision increased the Veteran's disability rating to 40 percent, effective August 5, 1999. Service connection for a neck disability was established in a February 2008 rating decision, and by way of a June 2009 rating decision the rating was increased to 30 percent, effective February 8, 2008. The April 2012 rating decision reduced the Veteran's back disability rating from 40 to 20 percent, effective from March 24, 2012. The March 2012 rating decision reduced the Veteran's neck disability from 30 to 20 percent, effective June 1, 2012. The Veteran appealed both decisions. He asserts that the reductions were improper and that he is entitled to increased ratings for both disabilities. The Board notes that prior to the reductions the RO did not issue the Veteran rating actions proposing the reductions. See 38 C.F.R. § 3.105(e) (2017). However such notice is not required in this Veteran's case. Where a reduced rating would not result in a decrease or discontinuance of the current compensation payments, there are no procedural requirements. VAOPGCPREC 71-91 (Nov. 1991). At the time the RO issued the March 2012 and April 2012 rating decisions the Veteran was receiving a combined compensation rating of 90 percent. Despite the two reductions, the Veteran's overall disability rate remained at 90 percent; thus, the lack of notice prior to the reductions, as typically required by 38 C.F.R. § 3.105(e) (2017), does not void the reductions. See VAOPGCPREC 71-91 (Nov. 1991). In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions, including those which have been in effect for less than five years. Id. at 417. The Court has held that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421. A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections that are set forth in 38 C.F.R. § 3.344(a)(b) (2017). 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) (2017) 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. The inquiry before the Board is whether the reductions were proper. For the following reasons, the Board concludes they were not. With respect to the Veteran's back disability, a December 2010 VA examination report showed the Veteran had flexion to 45 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, right and left lateral rotation to 10 degrees. Upon examination in March 2012, the VA examiner indicated the Veteran had flexion to 60 degrees with pain at 50 degrees, extension to 15 degrees with pain at 10 degrees, left and right lateral flexion to 30 degrees with pain at 15 degrees, and 30 degrees left and right lateral rotation with pain at 20 degrees. As for the Veteran's neck disability, the December 2010 VA examination report showed the Veteran had flexion to 45 degrees, extension to 5 degrees, with pain indicated by grimacing and resistance; left lateral flexion to 20 degrees and right lateral flexion to 25 degrees, limited by onset of pain as indicated by grimacing and resistance; and left lateral rotation and right lateral rotation to 20 degrees, limited by pain with grimacing and resistance. A December 2011 VA examination report showed flexion to 30 degrees, with pain at 30 degrees; extension to 10 degrees with pain at 10 degrees; right lateral flexion to 20 degrees with pain at 20 degrees; left lateral flexion to 35 degrees with pain at 35 degrees; right lateral rotation to 50 degrees with pain at 50 degrees; and left lateral rotation to 10 degrees with pain at 10 degrees. The aforementioned findings are consistent with the reduced ratings assigned by the March 2012 and April 2012 rating decisions. Nevertheless, the December 2010, December 2011, and March 2012 VA examinations show range of motion findings but do not indicate whether the findings are on both active and passive motion and/or in weight-bearing and nonweight-bearing. The Board observes that a precedential opinion that directly affects this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Also, the Court rejected VA's argument that the final sentence of § 4.59 cannot create a testing requirement because, if it did, absurdity would result. Specifically, VA contended that, because the upper extremities are not weight-bearing, requiring that all joints be tested in weight-bearing capacity would require Veterans with upper extremity joint disabilities to walk on their hands. The Court responded that whether upper extremities are or can be weight-bearing is a medical question that it is not competent to answer. Unfortunately, the December 2010, December 2011, and March 2012 VA examination reports do not comply with Correia. Having reviewed the evidence of record, the Board finds that the evidence of record fails to reflect that the Veteran had sustained improvement of his back and neck disabilities in March 2012 and June 2012 as the examinations used to reduce the Veteran's ratings do not comply with Correia. As such, the reductions of the Veteran's back disability from 40 percent to 20 percent and neck disability from 30 percent to 20 percent were improper, and the prior ratings must be restored. TDIU The Veteran contends that he cannot work due to his service-connected back disability, neck disability, and mood disorder with chronic posttraumatic stress disorder (PTSD). See February 2015 Notice of Disagreement. Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a) (2017). Service connection is currently in effect for mood disorder with chronic PTSD, rated 70 percent disabling; back disability, rated 40 percent disabling; neck disability, rated 30 percent disabling; radiculopathy of the left upper extremity, rated 10 percent disabling; scar status post cervical fusion, rated 10 percent disabling; and radiculopathy of the left lower extremity, rated 10 percent disabling. The Veteran has a combined 90 percent disability rating, satisfying the schedular requirements for TDIU. Thus, the question is whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The record reflects that the Veteran graduated from high school, and completed four years of college but did not graduate. See May 2014 VA Form 21-8940. Following service he worked primarily as a firefighter from November 1993 to March 2014, performing both firefighting and clerical duties. Id.; see also November 2010 VA psychiatric examination report. The October 2015 report of Dr. Schneider indicated that the Veteran was medically discharged from the Fire Department about 1 year earlier and was not employed. According to a November 2010 VA psychiatric examination report, the Veteran indicated he was driving the firetruck at that time and had ceased fighting fires. He said on a difficult day he lost up to 4 hours of efficient worktime due to psychiatric symptoms. During a December 2010 VA back examination, the Veteran stated that driving the ladder truck was growing more difficult and that he had to take more time off from work. In May 2011, the Veteran reported he quit working a few months ago because his firefighting job aggravated his back pain, and that his psychiatric symptoms impaired his ability to hold meaningful employment. See May 2011 VA psychiatric examination report. A July 2011 VA examiner opined that the Veteran's service-connected neck and back disabilities rendered the Veteran unable to work at any job requiring continued standing, walking, lifting, climbing, or strenuous sitting activity. The examiner also wrote that chronic pain from these conditions and the medication needed to treat that pain would make it difficult for the Veteran to perform any sedentary work that required concentration and focus. The examiner added that for the Veteran to function satisfactorily in any type of sedentary employment would require an understanding supervisor and very simple tasks that did not require mental focus and concentration. See July 2011 VA back examination report. A September 2013 opinion from B. K., C.F.N.P., stated that the Veteran's severe neck and back disabilities and mood disorders prevented him from working at his fullest potential, and that the Veteran should be medically retired. A December 2014 VA Form 21-4192 noted that the Veteran did not lose any time from work in the past 12 months due to disability, and that no concessions were made to the Veteran due to age or disability. The January 2015 VA examiner wrote that the Veteran's neck disability would not preclude light duty and office work. In a February 2015 Notice of Disagreement, the Veteran asserted that being placed on light duty showed he was unemployable, and that while he had a cane for his back, he could not use it due to a broken hand which resulted from him punching a wall due to his PTSD. The Veteran added that due to his PTSD, he lacked the focus to concentrate on learning a new job. The question of whether service-connected disabilities render a Veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (holding that applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to warrant entitlement to TDIU. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363. Although it has been asserted that the severity of these impairments would not limit the Veteran's ability to perform sedentary employment, the evidence before the Board does not show that sedentary employment is a viable option given the Veteran's work history primarily as a firefighter. Even though the Veteran was shown to be able to perform sedentary work for the fire department, the medical evidence suggests the Veteran's capacity to perform such work is limited due to his service-connected disabilities and the treatment thereof. See July 2011 VA back examination report and September 2013 opinion from B. K., C.F.N.P. Given that the evidence is at least in relative equipoise, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected orthopedic and psychiatric disabilities. Accordingly, entitlement to TDIU is warranted. See 38 U.S.C. § 5107(b) (2012). ORDER The reduction of the rating from 40 percent to 20 percent for residuals of a back injury effective March 24, 2012 was improper, and restoration of a 40 percent rating is granted. The reduction of the rating from 30 percent to 20 percent for cervical disk disease effective June 1, 2012 was improper, and restoration of a 30 percent rating is granted. Entitlement to TDIU is granted. (CONTINUED ON NEXT PAGE) REMAND As noted above, in July 2016 the Court issued a decision which 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. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). From review of the December 2013, January 2015, and May 2015 VA examination reports, it does not appear that the range of motion testing included testing for pain on both active and passive motion or in weight-bearing and nonweight-bearing positions. Additionally, in a February 2016 submission, the Veteran's representative indicated the Veteran's back and neck disabilities had increased in severity. See February 2016 VA Form 646. Accordingly, remand is appropriate to afford the Veteran a new spine examination. On remand, any outstanding VA and private medical records should be obtained as well. Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's claimed disabilities. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his claims. 3. Schedule the Veteran for a VA orthopedic examination to determine the severity of his service-connected back and neck disabilities. The electronic claims file should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed, including those necessary to determine whether the Veteran has lumbar-related neurological abnormalities. The examiner should test the range of motion of the spine in 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 examiner should report the range of motion in degrees and comment on the presence and extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. If such is not possible, the examiner should explain why. The examiner should indicate whether the Veteran's IVDS results in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should also note whether there are any objective neurological abnormalities associated with the Veteran's service-connected back and neck disabilities, including any bladder or bowel difficulties, aside from the Veteran's service-connected radiculopathy of left upper and lower extremities. The examiner should elicit from the Veteran a complete history of any flare-ups of his connected back and neck disabilities. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran's connected back and neck disabilities since August 2011. The examiner should describe the additional loss, in degrees, if possible. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. 4. Review the examination report for compliance with the Board's directives. Any corrective action should be undertaken prior to recertification to the Board. 5. Thereafter, readjudicate the issues on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs