Citation Nr: 18150113 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-25 723 DATE: November 14, 2018 ORDER Restoration of a 40 percent rating for chronic lumbosacral strain/sprain syndrome with degenerative joint disease (back disability), effective May 1, 2016, is granted, subject to the laws and regulations governing the payment of monetary awards. Restoration of a 10 percent rating for pityriasis rosea and corns, left foot (skin disability), effective May 1, 2016, is granted, subject to the laws and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. At the time of the reductions, the ratings for the Veteran’s service-connected back disability and skin disability had been in effect for more than five years. 2. The evidence of record at the time of the February 2016 reduction failed to demonstrate a sustained improvement in the Veteran’s service-connected back disability under ordinary conditions of life and work. 3. The evidence of record at the time of the February 2016 reduction failed to demonstrate a sustained improvement in the Veteran’s service-connected skin disability under ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The reduction of the rating for chronic lumbosacral strain/sprain syndrome with degenerative joint disease from 40 percent to 10 percent was improper, and restoration of the 40 percent rating, effective May 1, 2016, is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2,.4.3, 4.7, 4.10, 4.13, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. The reduction of the rating for pityriasis rosea and corns, left foot, from 10 percent to noncompensable was improper, and restoration of the 10 percent rating, effective May 1, 2016, is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2,.4.3, 4.7, 4.10, 4.13, 4.45, 4.59, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from February 1985 to August 1985 and from September 1985 to December 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in September 2014 and February 2016 by a Department of Veterans Affairs (VA) Regional Office. In July 2017, the AOJ issued a rating decision that increased the Veteran’s low back disability from 10 percent to 40 percent disabling. The matters regarding the reductions in the assigned disability ratings for the Veteran’s service-connected back and skin disabilities do not necessarily include a claim for an increased rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). The reductions in this case stem from the Veteran’s claim for entitlement to a TDIU. The Veteran did not contend in that claim or in any communication since that her back and skin disabilities warrant ratings in excess of their originally assigned ratings. Accordingly, the Board shall limit its decision herein to the propriety of the reductions regarding the Veteran’s back and skin disabilities. Rating Reductions The Veteran contends that the reduction of her ratings was not proper. Where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the Veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e) (2017). After completing the predetermination procedures, VA must send the Veteran written notice of the final action, which must set forth the reasons for the action and the evidence upon which the action is based. Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105 (i)(2) (2017). Rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which sets forth the criteria for reduction of ratings in effect for five years or more. 38 C.F.R. § 3.344(a) and (b) stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction based on a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; 38 C.F.R. § 3.344(c). 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. 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. 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. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation 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. 1. Whether the reduction from 40 percent to 10 percent for chronic lumbosacral strain/sprain syndrome with degenerative joint disease (back condition) effective May 1, 2016 was proper In the present case, the Veteran contends that the reduction of her disability rating from 40 percent to 10 percent for a back disability was improper. A June 2015 notice contained a rating decision proposing a reduction of the schedular rating for chronic lumbosacral strain/sprain syndrome with degenerative joint disease from 40 percent to 10 percent. The Veteran was notified of the proposed action, the reasons and bases therefore, and was given the required 60 days to present additional evidence and to request a hearing. The Veteran did not file a timely appeal and the AOJ subsequently implemented the rating reduction in a February 2016 rating decision, with an effective date of May 1, 2016. At that time, the Veteran’s 40 percent rating had been in effect for more than five years. Therefore, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply in this instance. The Board determines that the reduction for the Veteran’s back disability was not proper. As an initial matter, VA followed correct procedure by providing a rating decision setting forth all material facts and reasons why the Veteran’s rating was to be reduced. The Veteran was also provided a letter that offered her a hearing and the opportunity to submit additional evidence. The Veteran was notified of the action taken and her appellate rights in a June 2015 letter. As such, VA met the due process requirements under 38 C.F.R. § 3.105(e), (i) (2017). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ 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. Dofflemeyer, supra, at 277. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran’s back disability is evaluated under Diagnostic Code 5237, which pertains to degenerative arthritis of the spine under the General Rating Formula. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 20 percent rating where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. IVDS may be evaluated under either the General Rating Formula or under the IVDS Rating Formula, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. First, the medical findings do not clearly demonstrate actual improvement in the Veteran’s range of motion. VA examination reports dated in June 2013 and April 2015 do reflect forward flexion limited to only 45 degrees and 70 degrees, respectively, both of which do not meet the criteria for a 40 percent rating. However, the Board finds pertinent the Veteran’s reports of pain in June 2013 and flare-ups consisting of increased pain and spasms in April 2015. In addition, the Board finds the evidence does not show actual improvement in the impact of the Veteran’s back disability on ordinary conditions of life and work. In April 2015, although the Veteran reported that she could perform a “sedentary” occupation, she could not perform an occupation that involved heavy physical labor. Therefore, resolving the benefit of the doubt in the Veteran’s favor, the Board finds that, based on the evidence at the time of the reduction and when considered as a whole, the overall picture reflected did not establish that the Veteran’s service-connected back disability demonstrated improvement under ordinary conditions of life and work. Accordingly, based on the analysis above, the reduction in the rating assigned for the Veteran’s back disability was improper and restoration of the 40 percent ratings is warranted effective May 1, 2016. 2. Whether the reduction from 10 percent to a noncompensable rating for pityriasis rosea and corns of the left foot, effective May 1, 2016, was proper In the present case, the Veteran contends that the reduction of her disability rating from 10 percent to a non-compensable rating for a skin disability was not warranted. A June 2015 notice contained a rating decision proposing a reduction of the schedular rating for pityriasis rosea and corns of the left foot from 10 percent to a non-compensable rating. The Veteran was notified of the proposed action, the reasons and bases therefore, and was given the required 60 days to present additional evidence and to request a hearing. The Veteran did not file a timely appeal and the AOJ subsequently implemented the rating reduction in a February 2016 rating decision, with an effective date of May 1, 2016. At that time, the Veteran’s 10 percent rating had been in effect for more than five years. Therefore, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply in this instance. The Board determines that the reduction in for the Veteran’s skin disability was not proper. As an initial matter, VA followed correct procedure by providing a rating decision setting forth all material facts and reasons why the Veteran’s rating was to be reduced. The Veteran was also provided a letter that offered her a hearing and the opportunity to submit additional evidence. The Veteran was notified of the action taken and her appellate rights in a June 2015 letter. As such, VA met the due process requirements under 38 C.F.R. § 3.105(e), (i) (2017). In this case, the AOJ found a reduced rating was warranted because the Veteran’s examination did not reveal one or two scars that were unstable or painful. Here, however, the Board finds the medical evidence at the time of the rating decision, as a whole, do not reflect improvement under ordinary conditions of life and work. On examination in February 2012, the examiner found the Veteran had benign growth on the balls of her feet. In April 2015, the examiner determined the Veteran had painful callouses of both feet that made it difficult to stand for prolonged periods of time. As a result, the Board finds a 10 percent rating is warranted based on the Veteran’s reports of pain due to her skin disability. Accordingly, the 10 percent rating assigned for a skin disability must be restored effective May 1, 2016.   REMANDED Entitlement to a total disability rating based on individual unemployability due to service-disabilities (TDIU) is remanded. The Veteran contends that she is unable to secure and following a substantially gainful occupation due to her service-connected disabilities. A TDIU 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is nonetheless unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16 (b) (2017). “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In determining whether unemployability exists, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 Initially, the Board notes that the Veteran has met the schedular criteria for a TDIU for the entirety of the appeal period. The Veteran’s service-connected disabilities are as follows: back disability rated as 40 percent disabling, irritable bowel syndrome rated as 30 percent disabling, radiculopathy of the lower right extremity rated as 20 percent disabling, right femoral patella syndrome rated as 10 percent disabling, radiculopathy of the lower left extremity rated as 10 percent disabling, pityriasis rosea and corns of the right foot is rated as non-compensable, scars on her toes rated as non-compensable, pityriasis rosea and corns of the right foot is rated as 10 percent disabling. In total, the Veteran is currently rated as 70 percent disabled. Throughout the pendency of the appeal, the Veteran underwent multiple VA examinations that addressed the nature and severity of his service-connected disabilities and their resulting functional impairment. Upon review, the Board finds that, while each opinion adequately addresses whether each of the Veteran’s service-connected disabilities alone renders him unemployable, they do not reflect an opinion addressing the functional impact the Veteran’s service-connected disabilities, in combination, had on her employability. As a result, the Board finds remand is warranted to obtain an addendum opinion that describes the functional impact of the Veteran’s service-connected disabilities, in combination, on her ability to work, considering her education level, prior vocational training, work experience, and vocational history. In addition, updated VA treatment records dated from March 2017 to the present should be obtained. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records dated from March 2017 to the present. 2. Forward the record, to include a copy of this Remand, to an appropriate VA medical professional to obtain an addendum opinion regarding the functional impact of the Veteran’s service-connected disabilities, in combination, on her employability. The need for another examination is at the discretion of the examiner. Following review of the record, the examiner is requested to describe the functional impact of the Veteran’s service-connected disabilities (back disability; irritable bowel syndrome; radiculopathy of the lower right extremity; right femoral patella syndrome; radiculopathy of the lower left extremity; pityriasis rosea and corns of the right foot; scars on her toes; and pityriasis rosea and corns of the right foot), in combination, on her ability to work, considering her education level, prior vocational training, work experience, and vocational history. (Continued on the next page)   A rationale should be provided for any opinion offered. If the examiner is unable to provide an opinion without resorting to speculation, then the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken with the goal so that a definite opinion can be obtained.) M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel