Citation Nr: 18149887 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 15-23 918 DATE: November 14, 2018 ORDER Restoration of a 20 percent disability rating for chronic lumbar strain, effective November 1, 2014, is granted. FINDINGS OF FACT 1. The August 2014 rating decision, which reduced the disability rating for lumbar spine disability from 20 percent to 10 percent, effective November 1, 2014, was not based on evidence that showed actual improvement in the ability to function under the ordinary conditions of life and work. 2. At the time of the November 1, 2014 effective date of the reduction, the 20 percent disability rating for a lumbar spine disability had not been in effect for more than five years. CONCLUSION OF LAW The criteria for restoration of a 20 percent rating for lumbar spine disability effective November 1, 2014 are met. 38 U.S.C. § 5112; 38 C.F.R. §§ 3.102, 3.105, 3.343, 3.344(c), 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION Rating Reductions When determining whether a reduction was proper, the question concerns whether the reduction in the disability rating is warranted based on the medical and lay evidence of record. A Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Prior to reducing a Veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413 (1993). 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 also that the improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510 (2014). It is essential, both in the examination and in the evaluation of a disability, that it be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the 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. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. 38 C.F.R. § 3.344; Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b). The duration of the rating is measured from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). In the present case, at the time of the November 1, 2014 effective date of the reduction, the 20 percent rating for the Veteran’s lumbar spine disability had not been in effect for more than five years. Therefore, 38 C.F.R. § 3.344(c) is applicable. Where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has consistently held that when VA reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Kitchens v. Brown, 7 Vet. App. 320 (1995). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. Kitchens v. Brown, 7 Vet. App. 320 (1995). Restoration of a 20 percent disability rating for chronic lumbar strain. The Veteran contends that the reduction of the evaluation from 20 percent to 10 percent for his lumbar spine disability was improper as his disability is worse than the 10 percent rating. A May 2011 rating decision granted the Veteran service connection for a lumbar spine disability with a 20 percent evaluation, effective July 23, 2010, based on pain on motion and limitation of motion with forward flexion limited to 60 degrees. In May 2012, the Veteran filed a claim for an increased rating for his lumbar spine disability. The Veteran was afforded a VA examination in October 2012. According to an October 2012 VA examination report, the examiner found that the Veteran did not report flare ups that impacted the function of the spine. Forward flexion was to 80 degrees. Painful motion began at 60 degrees. Extension was normal at 30 degrees. Painful motion began at 25 degrees. Right lateral flexion was normal at 30 degrees, but painful motion began at 20 degrees. Left lateral flexion was normal at 30 degrees, but painful motion began at 25. Right lateral rotation was normal at 30 degrees, but painful motion began at 25 degrees. Left lateral rotation was normal at 30 degrees, but painful motion began at 25 degrees. The Veteran was able to perform repetitive use testing with three repetitions with no additional limitation in range of motion. The examination report does not indicate that a goniometer was used to determine range of motion. The Veteran had functional loss including less movement, pain on movement, and interference with sitting, standing, or weightbearing. He also had localized tenderness, guarding and/or muscle spasms, not resulting in abnormal gait or spinal contour. Muscle strength was normal. There was no muscle atrophy. Reflexes were normal. There was decreased sensation in the left leg from thigh to toes. There was no radicular pain or radiculopathy. He consistently used an assistive device (cane). The examiner noted that the Veteran had intervertebral disc syndrome (IVDS), but with no incapacitating episodes over the past 12 months. The examiner found that the Veteran’s condition impacted his ability to work as he avoided lifting objects or bending down. In a November 2012 rating decision, the RO proposed to reduce the rating of the lumbar spine disability from 20 percent to 10 percent. A November 23, 2012 letter notified the Veteran of the proposed reduction. In a November 26, 2012 letter, the Veteran requested a hearing regarding the proposed reduction. At the May 2014 hearing, the Veteran contended that on the day of the October 2012 VA examination he was having a better day than normal. He testified that he had problems with fatigue, pain, spasms, tenderness, and walking. He believed that his lower back was getting progressively worse. He testified that he could not run, even for short distances, and that if he walked too much he had to stop and sit down. To alleviate the pain, he had to lay down and rest his back. He indicated that sometimes he could not get out of bed. He awakened in the night due to back pain. Sitting down for long periods was very painful. The Veteran also asserted that the examiner did not use a goniometer when testing range of motion. The hearing officer agreed that another VA examination was appropriate. According to a June 2014 VA examination report, the Veteran stated his lower back seemed worse every day. He experienced pressure, stabbing, and burning from the right side to the knee, but the pain did not radiate to the foot. The Veteran also described pain as aching, cramping, and constant. The examiner found there were aggravating factors, such as an inability to run or pick up heavy objects (10 20 lbs.). The examiner noted that the Veteran worked for United Postal Service. The examiner found there were no flare ups impacting function. According to range of motion testing, flexion was to 80 degrees and extension ended was to 25 degrees. The Veteran could perform repetitive use testing with three repetitions. The examiner noted pain on movement, but no localized tenderness or pain on palpation, no muscle spasms resulting in abnormal gait, and no guarding. Muscle strength was normal. There was no muscle atrophy and deep tendon reflexes normal. The Veteran had normal sensation to light touch. There was no evidence of radiculopathy; ankylosis, or other no neurologic abnormalities. The Veteran did not have incapacitating episodes of IVDS. The Veteran regularly used a cane. The Board notes that the examination report does not indicate that a goniometer was used for range of motion testing. In an August 2014 rating decision, the RO reduced the Veteran’s disability rating from 20 percent to 10 percent, effective November 1, 2014, based on VA examination findings. The Board has carefully reviewed all the evidence of record, including VA and private medical records, VA examination reports, and the Veteran’s lay statements. The Board notes that the Veteran, as a lay person, is competent to describe his symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Board finds that while the VA examination reports seem to indicate some improvement in the Veteran’s range of motion, they do not actually reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510 (2014). For example, according to the October 2012 VA examination report, the examiner found that the Veteran’s lumbar spine disability impacted his ability to work as he avoided lifting objects or bending down. Further, medical records in the claims file do not reflect an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. According to a November 2013 VA pain consultation report, the Veteran described the pain as aching, shooting, burning, and radiating with spasms that was made worse by sitting, standing, and walking. It improved with rest and heat. Pain on movement was rated by the Veteran as 6 out of 10. The Veteran indicated the symptoms were slowly worsening. The medical examiner recommended treating the pain with a lumbar medial branch block. According to an April 2014 VA medical record, the Veteran asserted there had been no change in his low back pain pattern/quality. He continued to have low back pain, described as aching/cramping, daily, and nearly constant. He rated it as 6 out of 10. He indicated the pain was aggravated by walking, climbing stairs, and running. The examiner described the Veteran as being in uncomfortable distress. There was tenderness to palpation in the thoracolumbar region. The examiner proposed bilateral sacro iliac joint injections for pain reduction. In addition, recent medical evidence does not reflect that the Veteran’s symptoms have improved. An April 2015 electromyography report from Memorial Jackson Hospital indicates the Veteran has chronic mid lumbar radiculopathy. In addition, an October 2016 VA medical record shows the Veteran underwent spinal cord stimulator implant surgery. Finally, according to the Veteran’s competent and credible lay statements, he always uses a cane and he avoids bending and lifting objects weighing more than 20 lbs. He requires frequent rests when walking, and often has to lay down to alleviate the pain. These accommodations clearly interfere with the Veteran’s ability to function under the ordinary conditions of life and work. Thus, the weight of the evidence does not show an actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Accordingly, the reduction in the evaluation for the lumbar spine disability from 20 percent to 10 percent, effective November 1, 2014, was improper; the 20 percent evaluation is restored effective November 1, 2014. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel