Citation Nr: 18146961 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-41 013A DATE: November 2, 2018 ORDER The 40 percent evaluation for multi-level degenerative disc disease of the lumbosacral spine is restored, effective January 20, 2015. REMANDED 1. The issue of entitlement to an initial evaluation in excess of 20 percent disabling for left lower extremity lumbar radiculopathy, associated with multi-level degenerative disc disease of lumbosacral spine, is remanded. 2. The issue of entitlement to an initial evaluation in excess of 20 percent disabling for right lower extremity lumbar radiculopathy, associated with multi-level degenerative disc disease of lumbosacral spine, is remanded. 3. The issue of entitlement to an evaluation in excess of 20 percent disabling for left knee chondromalacia patella with degenerative joint disease is remanded. 4. The issue of entitlement to an evaluation in excess of 20 percent disabling for right knee chondromalacia patella with degenerative joint disease is remanded. 5. The issue of entitlement to a compensable evaluation for post vasectomy epididymitis with left sperm granuloma is remanded. 6. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT At the time of the reduction, the evidence failed to show actual sustained improvement in the Veteran’s range of motion that was reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW The criteria for restoration of a 40 percent disability rating for multi-level degenerative disc disease of lumbosacral spine have been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105 (e), 4.71a, DC 5010-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to September 1995. Rating Reduction In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). When a rating has continued for a long period at the same level (5 years or more), any rating reduction must be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344 (a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a). Where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, 38 C.F.R. § 3.344 (c) states that reexamination disclosing improvement will warrant reduction in rating. The Board must comply with general VA regulations applicable to all rating reductions regardless of the rating level or the length of time during which the rating has been in effect. For example, each disability should be viewed in relation to its whole recorded history, creating a consistent picture so that a current rating will accurately reflect the elements of the disability. See 38 C.F.R. §§ 4.1, 4.2. The Court has held that “[t]hese provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran’s disability.” Brown (Kevin) v. Brown, 5 Vet. App. 413, 420 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Additionally, 38 C.F.R. § 4.13 provides: “When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.” Finally, 38 C.F.R. § 4.10 provides that “[t]he 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.” Therefore, in any rating reduction case, not only must there be an improvement in a disability, but that improvement must actually reflect in improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown (Kevin) v. Brown, 5 Vet. App. 413, 420 (1993). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a); see also Brown, 5 Vet. App. at 421. In this case, the rating for degenerative disc disease of the lumbosacral spine was increased from 20 percent to 40 percent on January 8, 2009, based on a finding of a February 2009 VA examination that the forward flexion of the spine was 10 degrees. The reduction to 20 percent disability took effect on January 20, 2015, based on a finding of a January 2015 VA examination that the forward flexion of the spine was 75 degrees. The 40 percent rating was in place for over 5 years. The Board notes that on January 20, 2015, the Veteran’s combined compensation rate was increased to 60 percent, and the contemporaneous reduction in rating for the lumbosacral disability did not create a reduction in disability benefits. The Veteran maintains that the reduction in rating was improper because the January 2015 VA examination results do not reflect the severity of his disability and as evidenced in a more recent January 2016 VA examination, his back disability has not improved and has actually progressively worsened. The Veteran submitted a private orthopedic evaluation dated in July 2016 to support his assertion. 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 the 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 will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s degenerative disc disease of the lumbosacral spine has been rated under Diagnostic Code (DC) 5010-5243 pursuant to the general formula for diseases and injuries of the spine. See 38 C.F.R. § 4.71a, DC 5010, 5243. The criteria provide for a 20 percent rating when 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 cervical spine not greater than 120 degrees. The criteria for a 40 percent rating are forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5010. The rating for intervertebral disc syndrome, DC 5243, also permits rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes, which provides: a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (20). The Veteran is competent to report back symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds his statements credible as they are consistent and detailed. Following a review of the pertinent evidence, the Board finds that the criteria for a reduction in rating for degenerative disc disease of lumbosacral spine have not been met and therefore the 40 percent rating should be restored. See 38 C.F.R. § 3.105. The January 2015 VA examination report shows actual improvement in the Veteran’s objectively recorded range of thoracolumbar motion. At this examination, the Veteran’s thoracolumbar flexion was recorded as 75 degrees and his combined range of motion was to 165 degrees. After 3 repetitive motions, the flexion was 50 degrees and his combined range of motion was to 120 degrees. The examiner reported that repeated use over time or flare up did not result in loss in range of motion. However, at the January 2016 VA examination, the range of motion testing was not conducted because the Veteran refused to do any range of motion examination due to constant pain; the Veteran reported that any movement increases his back pain. The Veteran also reported that he had frequent significant flare-up even on any light routine activities at home. Moreover, based on the information found in the Veteran’s claims file and personal interview with the Veteran and his spouse, the July 2016 private medical examiner opined that the Veteran’s back condition became progressively more severe between 2009 and 2015 VA examinations. July 2016 private medical evaluation, at 2. According to the examiner, the Veteran had 57 days of incapacitating episodes of low back pain between January 2014 and January 2015 and 83 days between January 2015 and January 2016. Id., at 1. Based on the above evidence, the Board finds that a restoration of his 40 percent evaluation is warranted. Although the objective findings of the January 2015 VA examination showed some improvement in the Veteran’s range of motion findings, in the January 2016 VA examination, the Veteran was not able to do the movements required for range of motion testing and was found to have ankylosis of the thoracolumbar spine. Moreover, the July 2016 private examiner observed that the Veteran’s back condition was becoming progressively more severe, as evidenced by the increasing number of reported incapacitating episodes before and after the January 2015 VA examination. Therefore, the evidence shows that the Veteran’s ability to function with ordinary activities of life and work had not improved. Consequently, the evaluation of 40 percent for multi-level degenerative disc disease of the thoracolumbar spine is restored, effective January 20, 2015. REASONS FOR REMAND 1. Bilateral Lower Extremity Radiculopathy The Veteran asserts that his bilateral lower extremity radiculopathy is entitled to a higher initial evaluation than 20 percent, assigned effective January 20, 2015. On the January 2015 VA examination, the Veteran had radicular pain and other symptoms due to radiculopathy. The Veteran had no constant pain, paresthesias or numbness, but had moderate intermittent pain in both lower extremities. His radiculopathy involved the sciatic nerve, and he was found to have moderate radiculopathy on both sides. On the January 2016 VA examination, the Veteran complained of constant back pain associated with radicular pain on either leg up to his toes. The Veteran had radicular pain or other symptoms due to radiculopathy. There was no constant pain in bilateral lower extremities, but there was moderate, intermittent pain, mild paresthesias, and mild numbness in both lower extremities. His radiculopathy involved the sciatic nerve, and he was found ot have moderate radiculopathy in both sides. The examiner concluded that the Veteran has recurrent bilateral lower extremity radiculopathy symptoms. At the examination, the Veteran was found to have incomplete, moderate paralysis of the sciatic nerve bilaterally. According to Dr. G’s July 2016 private evaluation, between January 20, 2014 and January 20, 2015, the Veteran had “incapacitating episodes caused by his progressive low back disease, necessitating bed rest of 57 days duration.” Furthermore, between the January 2015 and January 2016 VA examinations, he suffered “incapacitating episodes caused by the further degeneration of his low back with increasingly severe radiculopathy of 83 days duration. In a June 2018 VA treatment record, a clinician noted that his dose of opiates was increased in the last year. The Veteran reported during the visit that his medications for radiculopathy have been working. The above evidence indicates that the Veteran’s radiculopathy has gotten worse. Yet, the latest available examination was dated January 2016. Generally, contemporaneous medical records are required to assess a veteran’s disability level in a rating decision. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, the Veteran must be afforded a new examination in order to determine the current severity of his radiculopathy. 2. Bilateral Knee Chondromalacia Patella 3. Post Vasectomy Epididymitis with Left Sperm Granuloma The Board finds that the June 2018 VA examinations for knee and erectile dysfunction are not adequate. Regarding the service-connected bilateral knee disabilities, the Board finds that a new VA examination is needed to address functional limitations during flare-ups and repeated use over time. According to a January 2015 VA examination, the Veteran reported having to use a cane and experiencing flare-ups once a week for 2 to 3 days at a time. At the June 2018 VA examination, the Veteran reported having functional loss after repetitive use of both knees. However, the June 2018 VA examination was not conducted during a flare-up or after repeated use over time, and the VA examiners did not estimate the loss of function during flare-ups or after repeated use over time. Accordingly, upon remand, if the examination is not conducted during a flare-up or after repeated use over time, the VA examiner will be asked to estimate functional loss during flare-ups or after repeated use over time based on the Veteran’s descriptions of his additional loss of function during flare-ups or after repeated use over time, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. Regarding the service-connected post vasectomy epididymitis with left sperm granuloma, the Board finds that a proper examination is needed. The Veteran seems to have underwent a male reproductive organ conditions examination for the purpose of evaluating the current severity of his service-connected epididymitis. The disability is evaluated under the diagnostic code 7525, which directs evaluation as urinary tract infection. Therefore, upon remand, a urinary tract infection examination must be administered. 4. TDIU Finally, the Board finds that the Veteran’s claim of entitlement to TDIU is inextricably intertwined with the claims for increased rating that are discussed in this remand. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of these claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA and pertinent private treatment records. 2. Arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected radiculopathies. 3. Arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected bilateral knee disabilities. The examiner is also to describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason 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. 4. Arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected epididymitis as specified under Diagnostic Code 7525. 5. After completing the requested action, readjudicate the issues remaining on appeal in light of all of the evidence of record. If any benefit sought on appeal remains denied, furnish a fully responsive Supplemental Statement of the Case to the Veteran and his representative and afford them a reasonable opportunity for response. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel