Citation Nr: 1804844	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-11 400	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Whether the reduction from a 20 percent rating to a 10 percent rating for the Veteran's service-connected lumbar spine disability, effective October 17, 2012, was proper.

2.  Entitlement to an increased initial rating for service-connected lumbar spine disability, evaluated during the instant rating period as 20 percent disabling prior to October 17, 2012, and 10 percent disabling thereafter.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from December 2001 to December 2005.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2013 by a Regional Office of the Department of Veterans Affairs (VA).  

In August 2017, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge.  Unfortunately, due to a malfunctioning recording device, the Board was unable to transcribe this hearing and associate the Veteran's testimony with the record.  Accordingly, in November 2017, the Board contacted the Veteran to advise him of the unavailability of his hearing transcript and offered an opportunity to participate in a new, transcribed, Board hearing.  As the Veteran did not respond to this notice or otherwise request a new hearing, the Board will proceed to adjudicate his case.  

The rating reduction challenge is addressed in the decision below, and the increased rating claims is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Following an October 2012 VA spinal examination, the RO reduced the Veteran's rating for his service-connected lumbar spine disability from 20 percent to 10 percent, effective October 17, 2012.

2.  At the time of the reduction, the Veteran's service-connected lumbar spine disability had been rated as 20 percent disabling since June 22, 2010, a period less than five years.

3.  At the time of the reduction, the evidence failed to show an improvement in the Veteran's lumbar spine disability under the ordinary conditions of work and daily life.  


CONCLUSION OF LAW

The reduction of the disability evaluation for a lumbar spine disability from 20 percent to 10 percent, effective October 17, 2012, was improper.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes 5235-5242 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran asserts that because his service-connected lumbar spine disability, diagnosed as a lumbar spine disability, has not improved in severity, the RO's reduction of his lumbar spine disability rating from 20 to 10 percent was improper.  

Congress has provided that 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.  Where, as in this Veteran's case, a disability rating has been in effect for less than five years at the time the reduction is implemented, 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; Brown v. Brown, 5 Vet. App. at 413, 420 (1993).  In this regard, these provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  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 it must also be determined that the observed 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).

There are further procedural requirements for reductions in disability compensation ratings that set forth certain notice and other due process requirements.  However, these regulations are not applicable in the instant case because the rating reduction did not result in a reduction or discontinuance of compensation payments then currently being made.  See 38 C.F.R. § 3.105(e).  In that regard, because the reduction of the Veteran's 20 percent rating to 10 percent did not result in a decrease in the Veteran's 40 percent combined disability rating, the reduction did not result in a decrease of the Veteran's monthly VA compensation award, thereby negating the need for the notice and due process requirements outlined in § 3.105(e).

Furthermore, in general, when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.  However, there is a different burden of proof with respect to rating reduction claims.  Because the issue in this case is whether the RO was justified in reducing the Veteran's 20 percent rating, rather than whether the Veteran was entitled to "reinstatement" of the 20 percent rating, the Board 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 421; see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). 

In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement.  See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).

With regard to the rating criteria applicable to lumbar spine disability, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the 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 assigned for the orthopedic manifestations of a lumbar spine disability when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242.

Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  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).  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

A review of the record reflects that while the Veteran demonstrated improved lumbar range of motion during the October 2012 VA examination that was the basis for the RO's rating reduction (when compared to the range of motion findings recorded during his previous October 2010 VA examination), the Board finds that when considered in context of the entirety of the Veteran's medical treatment records, the record is insufficient to establish improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work.  In that regard, when seeking VA medical treatment in October 2012, the same month he underwent a VA examination, he reported increased back pain and requested stronger pain medication to treat his increased symptoms.  Further, in a statement authored in September 2013, the Veteran's primary VA treatment provider reported that he had been treating the Veteran for his ongoing lower back pain since 2006 and that his symptoms and functional impairment had only increased, and not improved, during that time.  Although this is post-reduction evidence, it serves to demonstrate lack of improvement of the disability.  See Dofflemeyer, supra.  Additionally, as gleaned from the notes taken during the Veteran's Board hearing (as a transcript of this proceeding is not available), the Veteran testified that his lumbar spine disability had not improved when his rating reduction was implemented, and indeed, that his symptoms has steadily worsened, thereby triggering him to file the increased rating claim from which his rating reduction stemmed.  Accordingly, given the Veteran's reports of increased, not decreased, symptoms during the timeframe in which his rating reduction was implemented, the Board finds that the record fails to reflect that the Veteran's lumbar spine disability had improved when considering its impact on his ability to function under the ordinary conditions of life and work.

In consideration of this evidence, the Board concludes that the reduction of the Veteran's lumbar spine disability was improper.  Accordingly, restoration of the 20 percent rating for the Veteran's service-connected lumbar spine disability is warranted effective October 17, 2012.



ORDER

The reduction from a 20 percent rating to a 10 rating for the service-connected lumbar spine disability was not proper; a 20 percent disability rating is restored, effective October 17, 2012.  


REMAND

After reviewing the range of motion findings recorded in conjunction with the Veteran's most recent (October 2012) VA spinal examination,  the Board concludes that more comprehensive findings are required, per the recent precedential decision of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in both weight-bearing and nonweight-bearing (if applicable) positions, and, if possible, recording the range of motion of the opposite undamaged joint).  Moreover, if this examination is not performed during one of the Veteran's reported flare-ups of his lumbar spine disability, the examination report should also include a detailed current functional loss assessment.  See Sharp v. Shulkin, 29 Vet. App 26, 34 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups).  

Additionally, efforts to obtain the Veteran's recent, outstanding VA and private treatment records should be made.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's VA treatment records created since December 2014, and request that the Veteran either submit any recent, outstanding lower back private treatment records or submit completed release forms to allow VA to request them on his behalf.
2.  Schedule the Veteran to undergo a VA spinal examination to assess the current orthopedic and neurological manifestations of his service-connected lumbar spine disability.  The claims file should be made available to and reviewed by the examiner, and the examiner should address the following:

(a) The examiner should conduct all indicated tests and studies, to include range of motion studies.  The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in 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.  

(b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's lumbar spine due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion.  If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment.  The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation.

A complete rationale shall be given for all opinions and conclusions expressed.

3.  Then, after taking any additional development deemed necessary, readjudicate the issue on appeal.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs