Citation Nr: 18151435 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 17-66 622 DATE: November 19, 2018 ORDER The reduction in the rating for the Veteran’s rating for lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome was not proper, and the 20 percent rating is restored effective December 12, 2016. The reduction in the rating for the Veteran’s rating for right sciatic nerve and right foot drop was not proper, and the 20 percent rating is restored effective December 12, 2016. REMANDED Entitlement to a rating in excess of 60 percent for lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome is remanded. Entitlement to a rating in excess of 40 percent for right sciatic nerve and right foot drop is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran’s service-connected disabilities is remanded. FINDINGS OF FACT 1. A March 2017 rating decision reduced the evaluation for the Veteran’s lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome from 60 percent to 20 percent and right sciatic nerve and right foot drop from 40 percent to 20 percent effective December 12, 2016, after meeting all due process requirements in executing the reductions. 2. The Veteran’s lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome and right sciatic nerve and right foot drop do not show actual improvement under the normal circumstances of life and work. CONCLUSIONS OF LAW 1. The reduction in the rating for the Veteran’s rating for lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome from 60 percent to 20 percent was not proper and the 60 percent rating is restored effective December 12, 2016. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.71a Diagnostic Code (DC) 5243. 2. The reduction in the rating for the Veteran’s rating for right sciatic nerve and right foot drop from 40 percent to 20 percent was not proper and the 40 percent rating is restored effective December 12, 2016. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.105, 4.124a Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1988 to April 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges that the Veteran requested a Board hearing in his April 2017 notice of disagreement. However, as this request was made before a substantive appeal had been filed, this request must be rejected. See 38 C.F.R. § 20.703. The Veteran filed a claim for increased ratings for his lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome and right sciatic nerve and right foot drop in February 2016. He contends that his conditions have worsened, rather than improved. He states that he needs surgery for his condition, which he has chosen not to have, he is unable to bend over, wears back and leg braces, and has difficulty bathing, tying his shoes, and performing daily tasks. See April 2017 notice of disagreement. He contends that his condition is so severe that he is unable to work and his VA doctor has determined it would not get better. His functional limitations include no prolonged standing, sitting, or walking, no stairs, and maximum fifteen pound lift limit. See December 2017 VA Form 9. In a March 2017 rating decision, the RO reduced the Veteran’s evaluations for his service-connected lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome from 60 percent to 20 percent, and right sciatic nerve and right foot drop from 40 percent to 20 percent. As this rating decision did not affect the Veteran’s overall disability rating, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 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’s lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome was rated under DC 5243. Under the general rating formula for diseases and injuries of the spine, a 20 percent disability rating is warranted 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 thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 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 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 (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), an incapacitating episode is 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. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2015). If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). The Veteran’s right sciatic nerve and right foot drop is rated under DC 8520. Under DC 8520, ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran was awarded a 60 percent rating for lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome and a 40 percent rating for right sciatic nerve and right foot drop in an August 2013 rating decision. This decision was based upon a July 2013 back and peripheral neuropathy Disability Benefits Questionnaires (DBQs), which showed intervertebral disc syndrome with incapacitating episodes of at least six weeks over the prior twelve months and severe incomplete paralysis of the right sciatic nerve with marked muscular atrophy. The examiner noted the impact of the Veteran’s back and right sciatic nerve and foot drop conditions on his ability to work was moderate to severe impairment. As noted in the March 2017 rating decision, the reductions were based upon December 2016 back and peripheral neuropathy DBQs. The DBQ shows that the Veteran reported that both his back and right sciatic nerve and right foot drop conditions had worsened. However, the examiner noted that the Veteran had not had any episodes of acute signed and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior twelve months. In regard to the Veteran’s right sciatic nerve and right foot drop condition, the examiner indicated moderate incomplete paralysis of the right sciatic nerve. The examiner noted that the Veteran no longer had antalgic gait at the December 2016 examination. However, in many respects, the examination showed a worsening of the Veteran’s condition. The December 2016 examination showed severe paresthesias and/or dysesthesias, whereas the July 2013 DBQ showed moderate paresthesias and/or dysesthesias, which indicates a worsening. Further, in comparing the July 2013 and December 2016 DBQs, the sensory examination also shows worsening as upper anterior thigh sensation goes from normal to decreased and lower leg/ ankle sensation goes from decreased to absent. Thigh/knee and foot/toes sensation remains the same as decreased and absent, respectively. The examiner noted that the Veteran’s back and right sciatic nerve conditions create moderate impairment in performing sedentary activities of employment and moderate to severe impairment in performing physical activities of employment, which is equivalent to the functional impairment noted in July 2013. Resolving doubt in the Veteran’s favor, the Board finds that there was not sustained improvement in the Veteran’s lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome and right sciatic nerve and right foot drop conditions at the time of the reduction. Accordingly, the 60 percent rating for lumbar spine degenerative disc disease and degenerative joint disease with intervertebral disc syndrome and the 40 percent rating for right sciatic nerve and right foot drop are restored effective December 12, 2016. REASONS FOR REMAND The most recent VA examination was in December 2016. In his April 2017 notice of disagreement, the Veteran contends that his back condition has not gotten better, but worse. He states that he needs surgery for his condition, which he has chosen not to have; he is unable to bend over; wears back and leg braces; and has difficulty bathing, tying his shoes, and performing daily tasks. Further, in his December 2017 VA Form 9, the Veteran contends that he has bladder problems. Further, a December 2017 MRI report notes that the Veteran’s lumbar degenerative disc disease is progressing. In light of the evidence that the Veteran’s condition has worsened, a contemporaneous VA examination is needed to properly assess the current severity of the Veteran’s back and related right sciatic nerve condition, the include whether the Veteran has a bladder condition as an associated neurological abnormality of his back condition. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In the Veteran’s December 2017 VA Form 9, he stated that his neurosurgeon determined that his back and foot condition were so bad that he was removed from work. The Veteran submitted an Application for Increased Compensation Based on Unemployability in December 2016 contending that his service-connected back, right foot, posttraumatic stress disorder, and lower neuropathy conditions prevent him from securing or following any substantially gainful occupation. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s claim for entitlement to TDIU due to his service-connected disabilities must be remanded as it is inextricably intertwined with his pending increased rating claims and a decision by the Board on the Veteran’s TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). The matter is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his conditions that are not already of record. Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 2. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his lumbar spine and right sciatic nerve disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel