Citation Nr: 18152343 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-04 264A DATE: November 21, 2018 ORDER The reduction of the rating for degeneration of the lumbar intervertebral discs from 60 to 20 percent, effective March 1, 2014, was improper and restoration of the prior rating is granted. FINDING OF FACT There was no actual improvement in the Veteran’s disability level and ability to function under the ordinary conditions of life and work due to his low back disability since the evidence on which the prior rating was based. CONCLUSION OF LAW The requirements to reduce the rating for degeneration of the lumbar intervertebral discs were not followed, and the criteria for restoration of the prior rating of 60 percent, effective from March 1, 2014, have been met. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.105(e), 3.344(a)-(b), 4.1, 4.2, 4.10, 4.13 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal proceeds from a December 2013 rating decision that finalized a reduction in rating. The Veteran and his wife testified before the undersigned Veterans Law Judge at a Board hearing in November 2017. He submitted additional evidence at that time with a waiver of review of that evidence by the agency of original jurisdiction (AOJ). The Veteran submitted additional evidence in August and November 2018, but that information is not pertinent to this appeal. 1. Propriety of the reduction in rating for degeneration of the lumbar intervertebral discs from 60 to 20 percent, effective March 1, 2014 If the special procedural prerequisites for a rating reduction have not been followed, the reduction is void ab initio and reinstatement of the prior rating is required. Schafrath v. Derwinski, 1 Vet. App. 589, 595-96 (1991). This includes both heightened notification and procedural safeguards for certain cases, as well as the requirement for all reduction cases of an actual improvement in the Veteran’s disability level. See id.; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). As the AOJ did not fully follow these requirements, the rating reduction was improper. The heightened notification and procedural safeguards provided in 38 C.F.R. § 3.105(e) apply to this case because the reduction of the Veteran’s rating for his back disability from 60 percent to 20 percent resulted in a decrease in his overall combined disability rating, and thus, a reduction in his compensation payments. The AOJ followed these requirements by providing the necessary rating decision and notice to propose the reduction in October 2012, providing the requested predetermination hearing in July 2013, and issuing the finalized rating decision and notice in December 2013 that assigned the appropriate effective date for reduction. The heightened evidentiary requirements of 38 C.F.R. § 3.344 also apply to this case because the Veteran had a rating higher than 20 percent effective for more than five years prior to the date of reduction. Although the 60 percent rating was only effect since December 28, 2011, less than five years, his prior rating of 40 percent was in effect since September 11, 2007, more than five years. These provisions act as safeguards for conditions that are considered to have stabilized. See 38 C.F.R. § 3.344(a)-(b). The Board notes that two examinations were conducted prior to finalization of the reduction, those examinations had a similar or higher level of detail as prior examinations that resulted in the 60 and 40 percent ratings, and the AOJ found that there was sustained material improvement to support the reduction. See id.; see also Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). It is unnecessary to discuss the requirements of § 3.344 in further detail. This is because the evidence clearly shows no actual improvement in the Veteran’s disability level, meaning an actual improvement in the ability to function under the ordinary conditions of life and work, which is required in any case of a rating reduction. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown, 5 Vet. App. at 420-21. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). The reduction generally must have been supported by the evidence on file at the time of reduction; pertinent post-reduction evidence favorable to restoring the rating must also be considered, but negative evidence may not be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran and his wife made competent and credible statements regarding the nature and extent of his observable back symptoms, which are generally consistent with the medical evidence. As summarized below, the evidence shows that the Veteran had similar symptoms and effects on daily life and work at the time of the February 2012 VA examination that resulted in the 60 percent rating as during the October 2012 and March 2013 VA examinations that were cited for the reduction. Only the AOJ’s interpretation of the evidence and applicable rating criteria changed; as noted during the Board hearing, that is not a proper basis for reduction. Spinal disabilities are generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The General Rating Formula applies to DCs 5235 to 5243, unless intervertebral disc syndrome under DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). IVDS is to be evaluated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, General Rating Formula, Preliminary Note, DC 5243 and Note. Under the General Rating Formula, evaluations will be assigned 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. A 20 percent rating is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 assigned where there is forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under appropriate DCs. Under the alternative IVDS Formula, ratings of 10, 20, 40, and 60 percent are available based on the frequency of incapacitating episodes due to spinal disability. A 60 percent rating is assigned where there are incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Note (1) to this Formula provides that an incapacitating episode is defined for these purposes as 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. Historically, the Veteran was assigned a 10 percent rating for his low back disability effective in 1992, which was previously increased to 40 percent, effective September 11, 2007. This rating was continued in December 2009. In December 2011, the Veteran filed another claim for an increased rating for his spinal disability, stating that his back pain was no longer controllable with medications and that he needed to use a cane for stability now. In January 2012 statements, the Veteran and his wife further reported that he was no longer able to do certain activities due to constant back pain, and he had to lay down frequently. In a February 2012 VA examination, the examiner summarized that the Veteran’s back was progressively worse since his 1991 injury and there was severe multilevel disc disease. He reported taking constant moderate to severe back pain, being in bed most of the time, and that he used a cane constantly. Medications of oxycodone, Naprosyn, and cyclobenzaprine, as well as use of a TENS unit and ice, helped a little. Range of motion testing showed forward flexion to 20 degrees with pain throughout range of motion, and combined range of motion to 40 degrees with pain; no repetitive testing was competed because it was too painful. The examiner stated that the Veteran had incapacitating episodes for at least 6 weeks in the past 12 months. There was diffuse tenderness and spasm to the lumbosacral spine, and guarding and spasm resulted in abnormal gait and spinal contour. There was decreased muscle strength to 4 out of 5 at the right hip and knee, ankles reflexes were 1+ bilaterally, sensory testing was normal, and the Veteran reported moderate right lower extremity radiculopathy symptoms. Results of a January 2012 MRI for back pain with radiculopathy noted pain at level 9 and weakness at level 3 for years, affecting the right side L3-4 level, with at least six weeks of activity modification and failed conservative therapy. The VA examiner noted that the Veteran had limitations on work due to his back and that he could not work. In a February 2012 rating decision, the AOJ awarded a higher rating of 60 percent under Diagnostic Code (DC) 5242-5243 based on incapacitating episodes totalling more than 6 weeks in the past 12 months, effective December 28, 2011. The AOJ also awarded a separate 20 percent rating for moderate right lower extremity radiculopathy under DC 8520-8720, effective December 28, 2011. These awards were based primarily on the February 2012 VA examination, although the AOJ noted that VA treatment records showed continued treatment for the low back. The Veteran filed a claim for a total disability rating based on individual unemployability (TDIU) in August 2012, and another VA examination was conducted in connection with that claim. This resulted in the October 2012 proposed reduction of the rating for the low back disability, and denial of TDIU. The October 2012 VA examiner stated that, since the last examination in February 2012, the Veteran reported an increase in severity and length of his chronic low back pain. The pain was knife-like, constant, moderate in severity, and radiated to his right hip and upper thigh, with flares that were severe in nature 5 times a year that lasted 1-7 days. He was receiving medical management only with pain medications, NSAIDS, muscle relaxers, an TENS unit as needed, which were partially helpful. He used a cane constantly. Range of motion after repetitive testing was forward flexion to 40 degrees with pain and combined range of motion to 90 degrees, but the examiner noted that there would be unspecified additional functional loss after repetitive use. Guarding or muscle spasm resulted in abnormal gait and spinal contour. Muscle strength was decreased to 4 out of 5 in all areas in both lower extremities, reflexes were normal, sensation was decreased in the right foot and toes, and there was no atrophy or ankylosis. There were mild or moderate right radiculopathy symptoms, and the examiner summarized that there was overall mild impairment of the right sciatic nerve. The examiner stated that there was less than one week of incapacitating episodes in the past 12 months. The back disability resulted in effects on work of limitations in lifting, carrying, walking, standing, stooping, crawling, and repeated bending from the waist. This examiner opined that the Veteran’s back symptoms and sciatica of the right lower extremity prevented him from maintaining substantially gainful employment. Another VA examination in March 2013 reflected similar symptoms and functional effects. The examiner noted that the Veteran continued to have daily low back pain that was moderate in severity and lasted for hours, was sharp and burning and radiated to the right hip, with associated weakness and stiffness, and constant use of a cane. The Veteran had not seen a back specialist but continued to treat the condition with medical management and activity restriction. Range of motion was slightly decreased, with forward flexion to 5 degrees less, at 35 degrees, and combined range of motion to 85 degrees. Other findings were similar to the October 2012 VA examination, including the limitations and work effects. During a July 2013 AOJ predetermination hearing, the Veteran and his wife testified to similar symptoms and treatment as noted in the above VA examinations. The Veteran reported receiving Social Security disability benefits due solely to his back, and he explained that he had not sought treatment because providers had already told him previously that his only options were to continue with medical management or have an operation, which was not recommended. The Veteran asserted that the range of motion testing to 45 degrees was with more pain. The Veteran continued to give a similar description of his symptoms and effects and his February 2015 substantive appeal (VA Form 9) and during the July 2017 Board hearing. He continues to have flare-ups requiring him to lay down despite the use of pain medications, TENS unit, ice or heat; continues to use a cane frequently; and is unable to participate in certain activities due to his back pain. Additionally, VA and private treatment records reflect similar limitations and flare-ups of back pain. For example, as noted by the Veteran, VA records in August 2012 (prior to the rating reduction), July 2014, and September 2014 reflect treatment for worsening or acute exacerbations of back pain and muscle spasms. As summarized above, the primary difference between the three examinations in 2012 and 2013 were that the February 2012 VA examiner summarized that the Veteran had six weeks or more of incapacitating episodes in the last 12 months based on his reports of incapacitation. Although there was no documentation of prescribed bedrest by a physician for those periods, the AOJ granted a 60 percent rating on this basis. The October 2012 and March 2013 VA examiners recorded similar or increased symptoms and effects, but noted that the Veteran had not sought treatment and had less than one week of incapacitating episodes in the past 12 months. The January 2015 statement of the case (SOC) explained that the AOJ considered the reduction proper because there was “no objective evidence” of prescribed bed rest documented in treatment records to establish incapacitating episodes under VA’s definition of that term for the purposes of DC 5243. The SOC also noted that the Veteran was erroneously awarded a separate 20 percent rating for right lower extremity radiculopathy together with the rating based on incapacitating episodes, although the AOJ did not change that 20 percent rating. Under the special procedures for rating reductions, it is irrelevant whether the 60 percent rating for the Veteran’s back disability (or the associated 20 percent rating for right lower extremity radiculopathy) was properly granted in the February 2012 rating decision. The evidence clearly shows that he had at least the same level of symptoms and resulting effects due to his longstanding low back disability in February 2012 and subsequently. Thus, because actual improvement was not shown, the rating reduction was void, and restoration of the prior rating is warranted. Schafrath, 1 Vet. App. at 595-96; Brown, 5 Vet. App. at 420-21. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Wheatley