Citation Nr: 18151286 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 14-38 091 DATE: November 20, 2018 ORDER The April 2013 reduction in the evaluation assigned for degenerative disc disease of the lumbar spine was not proper; a 20 percent evaluation is restored effective July 1, 2013. The issues of entitlement to a temporary total evaluation due to hospital treatment and/or convalescence due to a service-connected disability are dismissed. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for recurrent tinnitus is remanded. Entitlement to service connection for diabetes mellitus type II as secondary to service-connected disabilities is remanded. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity neurological impairment is remanded. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity neurological impairment is remanded. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An April 2013 rating decision reduced the disability evaluation assigned for the Veteran’s lumbar spine disability from 20 percent to 10 percent effective July 1, 2013. 2. At the time of the April 2013 reduction, the Veteran’s lumbar spine disability had not undergone sustained improvement. 3. At a June 2018 Board hearing, after being advised of his rights and the consequences of his decision, the Veteran explicitly and unambiguously withdrew the appeal of the issues of entitlement to a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 and 4.30. CONCLUSIONS OF LAW 1. The reduction of the disability evaluation for the Veteran’s service-connected lumbar spine disability from 20 percent to 10 percent was not proper, and the 20 percent disability evaluation is restored effective July 1, 2013. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Codes 5237 and 5243. 2. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to a temporary total evaluation due to hospital treatment of a service-connected disability. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of a substantive appeal have been met with respect to the issue of entitlement to a temporary total evaluation due to convalescence for a service-connected disability. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1976 to June 1978. He testified before the Board at a June 2018 hearing conducted via videoconference. A transcript of the hearing is of record. Reduction In July 2011 and September 2012, the Regional Office (RO) proposed to reduce the Veteran’s 20 percent evaluation for his service-connected lumbar spine disability to 10 percent. This reduction was accomplished in an April 2013 rating decision, effective July 1, 2013. Initially, the Board observes the RO complied with the procedural safeguards regarding the manner in which the appellant was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The previously assigned 20 percent evaluation was awarded by a February 2010 rating decision, which was based on a January 2010 VA examination. At this examination, the Veteran exhibited flexion of the lumbar spine to 80 degrees with extension to 20 degrees. The VA examiner also noted the Veteran experienced mild paralumbar muscle spasm and tenderness on palpation. In a February 2010 addendum, the VA examiner noted these spasms were severe enough to cause a mild loss of lumbar lordosis. Based on this examination, the February 2010 rating decision granted a 20 percent evaluation for the due to muscle spasms resulting in abnormal spinal contour. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The Veteran was provided another VA examination in June 2011. The examination report notes the Veteran exhibited flexion of the lumbar spine to 70 degrees with extension to 15 degrees of motion. The VA examiner noted there were no spasms, guarding, or bony tenderness with palpation. At a December 2012 VA examination, the Veteran exhibited 80 degrees of flexion and 20 degrees of extension. Again, the VA examiner noted there were no spasms, guarding, or altered gait. Based on these VA examinations, the RO reduced the Veteran’s disability evaluation to 10 percent, noting there was no evidence of muscle spasms resulting in abnormal gait or spinal contour, nor was there evidence of flexion limited to 60 degrees or less, or combined range of motion of the spine of 120 degrees or less. The Board has also reviewed other medical evidence of record. A September 2011 VA physical therapy note indicates that the left paraspinals were in spasm and, after therapy, the Veteran left in a more upright position, suggesting an abnormal spinal contour. An August 2014 VA treatment record notes the Veteran was prescribed cyclobenzaprine to treat muscle spasms in his lumbar spine. A February 2017 private treatment record notes the Veteran experienced lumbosacral muscle spasms with right quadratus lumborum guarding. The Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s service-connected lumbar spine disability, including under the ordinary conditions of life and work. While the June 2011 and December 2012 VA examination reports note no muscle spasms, other medical evidence generated before and after the reduction was effectuated indicates the Veteran continued to be treated for spasms of the low back muscles resulting in abnormal spinal contour or guarding. The Board again notes, the Veteran does not bear the burden of demonstrating entitlement to retention of the higher evaluation. Brown, 5 Vet. App. at 418. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). VA has not met its burden in the instant case. The weight of the evidence of record does not show a sustained improvement in the Veteran’s lumbar spine disability at the time of the April 2013 reduction. As such, the reduction of the 20 percent evaluation to 10 percent, effective July 1, 2013, was not proper. Therefore, the requirements for restoration have been met. See generally 38 C.F.R. § 3.344. Withdrawal of Appeal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. At the June 2018 Board hearing, the appellant withdrew the appeals of entitlement to a temporary total evaluation based on hospital treatment or convalescence for a service-connected disability. The undersigned Veterans Law Judge clearly explained the consequences of the Veteran’s decision to withdraw these appeals, and the Veteran explicitly and unambiguously withdrew these appeals on the record. See generally Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues and the appeals are dismissed. REASONS FOR REMAND In June 2018, the Veteran’s representative requested that recent VA treatment records be obtained from the VA Clinic in Colorado Springs, Colorado. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Any outstanding VA treatment records must be obtained and associated with the claims file. In addition, at the June 2018 Board hearing, the Veteran testified that his low back disability has increased in severity. Further, while he has submitted a Disability Benefits Questionnaire (DBQ) addressing the neurological impairment of his bilateral lower extremities, this DBQ does not contain sufficient information to allow the Board to properly rate these disabilities. As such, on remand, the Veteran should be provided new VA examinations to address the current severity of these disabilities. The disposition of the Veteran’s increased evaluation appeals may potentially affect his claim for entitlement to TDIU. All issues “inextricably intertwined” with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the TDIU claim must be remanded to the AOJ in accordance with the holding in Harris. Finally, in an April 2018 rating decision, the AOJ denied service connection for bilateral hearing loss and recurrent tinnitus; the Veteran submitted a notice of disagreement (NOD) appealing this denial also in April 2018. To date, the AOJ has not issued a statement of the case (SOC) addressing the Veteran’s NOD. As a result, the proper course of action for the Board is to the matter for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matters are REMANDED for the following action: 1. Issue a statement of the case with respect to the issues of entitlement service connection for bilateral hearing loss and recurrent tinnitus. All appropriate appellate procedures should then be followed. 2. Obtain and associate with the electronic claims file all outstanding VA treatment records. 3. Schedule the Veteran for VA spine and peripheral nerve examinations to address the severity of his service-connected low back disability and associated neurological impairment of the bilateral lower extremities. Following a review of the claims file and physical examination of the Veteran, the examiner is to provide a detailed review of the Veteran’s pertinent medical history current complaints and the nature and extent of any disability, including functional effects on employability and activities of daily life. The examiner must provide an opinion as to whether the Veteran experiences additional disability during flare-ups or when the joint is used repeatedly over a period of time. If such an opinion cannot be rendered without resort to speculation, the basis for such a determination must be provided. A complete rationale for any opinions expressed must be provided. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran’s appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant’s satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel