Citation Nr: 18142444 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-32 706 DATE: October 15, 2018 ORDER The reduction in disability rating for lumbar spine intervertebral disc syndrome disability was not proper; restoration of the 20 percent disability rating, effective January 1, 2015, is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to increased rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. By an April 2015 rating decision, the RO reduced the assigned disability rating for the Veteran’s lumbar spine disability from 20 percent to 10 percent, effective January 1, 2015. 2. At the time of the reduction, a 20 percent rating for the Veteran’s lumbar spine disability has not been in effect for more than five years and the reduction did not reduce the Veteran’s overall level of compensation or combined disability rating. 3. An improvement of the Veteran’s ability to function under ordinary conditions of life and work as a result of his lumbar spine disability has not been demonstrated by the preponderance of the evidence. CONCLUSION OF LAW The criteria for restoration of the 20 percent rating for a lumbar spine disability, effective January 1, 2015, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5241 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1988 to June 2008. Reduction and Restoration Under 38 C.F.R. § 3.105(e), when a reduction in 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 or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, 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 the beneficiary of the final rating action expires. Furthermore, 38 C.F.R. § 3.344 provides additional requirements for ratings that have been in effect for five or more years. Specifically, examinations less full and complete than those on which payments are authorized or continued will not be used as a basis of reduction. Moreover, ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. VA must also ensure that the evidence makes reasonably certain that any material improvement will be maintained under the ordinary conditions of life. Procedurally, it is clear that the AOJ did not provide the notice and response time ordinarily required by 38 C.F.R. § 3.105(e). However, the rating decision on appeal did not reduce the Veteran’s overall rating and, therefore, those provisions do not apply. Moreover, because the original rating was in effect for less than five years at the time of the reduction, the provisions of 38 C.F.R. § 3.344 are also inapplicable. Thus, the only remaining question is whether the reduction itself was factually warranted. In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer at 281-282. However, post-reduction evidence may not be used to justify an improper reduction. In considering the propriety of a reduction in this case, a review of the regulations for establishing disability ratings is appropriate. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). His service-connected lumbar spine disability has been rated pursuant to the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5243-5242. Under the spine codes, a 10 percent rating is warranted for 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 body height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent is warranted for unfavorable ankylosis if the entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). By a February 2012 rating decision, the Veteran’s lumbar spine disability was increased to 20 percent based on an August 2011 VA examination report, which showed forward flexion of the lumbar spine to 45 degrees. Although a January 2015 deferred rating requested a new spine “increase” examination, an examination was not scheduled. Thereafter, by an April 2015 rating decision, the RO reduced the Veteran’s lumbar spine disability to 10 percent, effective January 1, 2015, based on a July 2014 VA examination report which showed forward flexion to 80 degrees. In his May 2015 notice of disagreement, the Veteran stated, “This condition has not improved since my last evaluation and has actually worsened.” He further noted that he was prescribed medications for his back condition, and this may have masked the pain during the examination which may account for any improvement in comparison to the previous examination. He added that he did not think this should be considered sustained improvement and asked that the condition will be rated at the higher rating. He made similar assertions in his July 2016 substantive appeal. The Board finds some deficiencies with the July 2014 VA examination. Notably, prior VA examinations are more consistent with the evidence of record than the July 2014 VA examination. The December 2008 examination report shows forward flexion of the lumbar spine to 75 degrees with objective evidence of pain at 60 degrees; the October 2010 examination report shows forward flexion of the lumbar spine to 60 degrees with objective evidence of pain at 50 degrees; an August 2011 examination report shows forward flexion of the lumbar spine to 45 degrees with objective evidence of pain at 45 degrees. In addition, while the Veteran reported flare-ups during the July 2014 examination, such were not acknowledged or considered by the VA examiner. Furthermore, a review of the Veteran’s treatment records shows that he continuously continued to complain of back pain. Notably, VA treatment records dated in February 2015 indicate that the Veteran had back pain that was chronic and progressive, and indicated that repeat MRI was needed. Subsequent VA treatment records dated in August 2015 show reports of back pain which was described as 10 out of 10 in severity. Moreover, prior and subsequent treatment records show active prescriptions for treatment of the Veteran’s back such as Etodolac 500mg and Methocarbamol 500mg. Upon review of this evidence, the Board finds that the evidence weighs against a finding of an improvement in the Veteran’s lumbar spine disability at the time of the reduction under the ordinary conditions of life and work between the August 2011 and the July 2014 VA examinations. Although the Veteran’s forward flexion of the lumbar spine was higher than it had been in the previous VA examinations, the Veteran still had the same complaints of continued, progressive pain with flare-up limiting his daily activities. Furthermore, such is supported by his ongoing treatment records, which continued to show complaints of chronic back pain that was treated with medication. In addition, subsequent treatment notes less than a year after the July 2014 VA examination confirm that the Veteran’s back disability was progressive, and even indicated that a new MRI should be ordered. Moreover, the Veteran competently indicated that his back pain did not improve despite the physical findings noted in the July 2014 VA examination. As noted above, while post-reduction evidence may not be used to justify an improper reduction, such evidence may be considered in the context of evaluating whether the condition had actually improved. Here, aside from the Veteran’s lay assertions as to the severity of his back disability, the postreduction medical evidence, some of which was obtained approximately 6 months later, clearly establish that improvement is not shown. Therefore, the Board cannot find that the evidence supports a finding that the Veteran’s back disability resulted in an improvement in his ability to function under the ordinary conditions of life and work at any time. Accordingly, the Board finds that the rating reduction from 20 percent to 10 percent was improper because the evidence of record does not show an improvement in the Veteran’s lumbar spine disability under the ordinary conditions of life and work. The Board, therefore, restores the 20 percent rating for a lumbar spine disability, effective January 1, 2015. REASONS FOR REMAND A remand is necessary to provide the Veteran with an updated VA examination to determine the current severity of his lumbar spine disability and to further develop his PTSD claim. PTSD The Veteran reported numerous stressors that he believes led to his currently diagnosed PTSD. His reported stressors include: (a) when he was stationed at Guantanamo Bay, Cuba, during patrols, he saw bodies of refugees who were washed from the ocean (b) a ship of was abroad on USS Bonefish caught on fire (not when he was on the ship) (c) an incident when a submarine he was on almost sank. In a March 2014 deferred rating, the RO indicated noted the first stressor, but noted that more information was needed with regard to the second and third stressors, specifically a 60-day timeframe of when they occurred. In response, the Veteran submitted a Letter of Commendation regarding his service in Cuba, which in part, describes his commitment to accommodate the needs of over 45,000 Haitian and Cuban migrants as well as 7,500 military personnel. In addition, he provided a list with history of his assignments, which show that he served in Guantanamo Bay from September 1994 to March 1995. In July 2014, the Veteran underwent a VA examination for PTSD, where a diagnosis of PTSD was confirmed. The examiner acknowledged the Veteran’s reported stressors, but stated, “I don’t know if this was from ‘enemy/terrorist activity’ or just ‘peace time’ stuff e.g. Cuban bodies recovered floating in the war, due to his classified missions he says were stressful.” Nevertheless, the examiner concluded that this stressor supported the current diagnosis of PTSD. Thereafter, a September 2014 VA memorandum indicated that corroboration of the Veteran’s reported stressors was previously deferred because he did not provide any names or dates. However, the memorandum further noted the Letter of Commendation regarding his service in Guantanamo Bay, but indicated that no evidence regarding the unnamed submarine that almost sank was given. On the same day, another VA memorandum was issued, indicating formal finding of lack of information required to corroborate the Veteran’s stressors. In addition, the Veteran provided further details about his reported stressors in his July 2016 substantive appeal (VA Form 9). For example, he reported that he was scared many times due to equipment malfunction in the submarine he was on, as well as identified one occasion that occurred while stationed off the coast of San Diego where a Russian submarine was in the water close to the United States. After a careful review, the Board finds that the RO has not provided due diligence in an attempt to corroborate the Veteran’s stressors. First, exact dates of his service in Guantanamo Bay are of record, but no attempt to verify the circumstances of his service was made. Second, the Veteran’s military personnel records were never requested and are not associated with the claims file. Third, the Veteran reported secret missions he was involved in, which the RO has not attempted to verify. Lastly, a February 2016 third-party correspondence authored by Jeri Petersen, LPC, indicate that the Veteran was attending individual psychotherapy for PTSD since November 2015; however, these records are not associated with the claims file. Accordingly, further development is necessary prior to making a decision on the merits. Increased Rating for a Lumbar Spine Disability As aforementioned, the Veteran was last examined in July 2014; however, in both his May 2015 notice of disagreement and July 2016 substantive appeal, the Veteran indicated that his back disability worsened in severity. As such, a new examination is necessary. TDIU In light of the above, the issue of a TDIU is inextricably intertwined with the issues being remanded and adjudication of TDIU must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran and ask him to provide any information regarding any outstanding medical treatment that the Veteran received for his claimed PTSD, specifically records from Jeri Petersen, LPC of the Coastal Carolina Neuropsychiatric Center. Provide him VA Forms 21-4142, Authorization and Consent to Release Information to the VA, for any identified outstanding and relevant private treatment records. Also advise him that he may submit such records if he so chooses. 3. Contact the appropriate agency to obtain any outstanding documents in the Veteran’s Official Military Personnel File (OMPF), including any and all records of his assignments, whether permanent or temporary duty stations (to include any DD form 1610 or the equivalent at the time); all travel orders; pay stubs that reflect special pay status, travel vouchers, dislocation allowance, any TDY orders, and any security clearance. Even if the requested evidence is unavailable, utilize the information provided by the Veteran in his numerous statements and during his July 2014 VA examination, along with the April 2014 correspondence from the Veteran, which includes history of his assignments with dates and locations, and contact the relevant agencies to determine the nature of his service during the periods of time in question. If necessary, submit numerous requests, each for a 60-day time frame. 4. Then, provide the Veteran with a VA examination to identify the severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his lumbar spine disability. In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The lumbar spine should be tested in (1) active motion, (2) 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. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. In other words, the examiner should estimate any additional loss of motion during flare-ups based on the Veteran’s reported history, provided that such history is generally consistent with the overall disability picture. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must 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. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale should be provided. 5. Then, readjudicate the remanded claims on appeal, to include entitlement to a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel