Citation Nr: 18152737 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-44 709 DATE: November 27, 2018 ORDER The reduction from 60 percent to 10 percent rating for lumbar spine intervertebral disc syndrome (IVDS) was proper, but only to the extent of a 40 percent rating; restoration of a 40 percent rating is granted, effective June 1, 2015, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran’s lumbar spine IVDS, while not manifested by bedrest prescribed by a physician for incapacitating episodes, was manifested by painful limitation of motion equating to forward flexion to 30 degrees or less. CONCLUSION OF LAW The reduction of the Veteran’s 60 percent rating service-connected lumbar spine IVDS was proper, but only to a rating of 40 percent. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1956 to May 1959. The Veteran died in March 2016, and the appellant, his surviving spouse, was substituted for the Veteran in August 2016. This issue arises from an March 2015 rating decision implementing the reduction in the disability ratings. The propriety of a reduction from 60 percent to 10 percent for the Veteran’s lumbar spine IVDS. The Veteran, and subsequently appellant, contend that the Veteran’s lumbar spine IVDS has not improved as the Veteran continued using a walker, fell numerous times from back and leg pain, and stopped doing physical labor because of severe pain.   Legal Criteria for Reductions 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. When an RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. at 413, 420 (1993). Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The veteran must be allowed an opportunity to participate in a personal hearing, with the request received within 30 days of the notice provided, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e), (i). After the allotted period, if no additional evidence has been submitted, final rating action will be taken, and the rating will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating expires. 38 C.F.R. § 3.105(e). Legal Criteria for Rating Disabilities Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. However, for reductions, the burden of proof is on the Government. Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (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. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Analysis The Veteran’s 60 percent rating was based, in part, on an April 2013 VA examination. At that time, the Veteran reported that during flare-ups, he can only lie in bed due to severity of his back pain. He was also unable to walk more than 5 minutes. Applicable to this case, spine disabilities are rated under 38 C.F.R. § 4.71a, DC 5243, General Rating Formula for Diseases and Injuries of the Spine, which provides for a 100 percent rating for unfavorable ankylosis of the entire spine, a 60 percent rating for unfavorable ankylosis of the entire thoracolumbar spine, and a 40 percent rating for forward flexion of the thoracolumbar spine 30 degrees or less; a 20 percent rating is warranted for 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; and a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal contour; or vertebral body fracture with loss of 50 percent or more of the height. The rating criteria also provide for ratings for IVDS. These ratings are based on incapacitating episodes, defined as a period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 60 percent rating is warranted for more than 6 weeks of incapacitating episodes in a 12-month period, a 40 percent rating is warranted for 4-6 weeks of incapacitating episodes in a 12-month period; a 20 percent rating is warranted for 2-4 weeks of incapacitating episodes in a 12-month period; and a 10 percent rating is warranted for less than 2 weeks of incapacitating episodes in a 12-month period. Id. The Veteran was afforded a VA examination in April 2013. IVDS was said to result in 6 or more weeks of incapacitating episodes in the previous 12 months. Range of motion was 70 degrees on forward flexion, on extension; 20 degrees on extension, right and left lateral flexion, and right and left lateral rotation. Painful motion began at 60 degrees on forward flexion, 15 degrees on extension and right and left lateral flexion, and 10 degrees on right and left lateral rotation. On repetition, range of motion was to 70 degrees on forward flexion; 20 degrees on extension, right and left lateral flexion, and right lateral rotation; and 15 degrees on left lateral flexion. Functional loss was noted as less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with standing, sitting, and weight-bearing. Another VA examination was conducted in July 2014. At that time, range of motion was 90 degrees on forward flexion and 30 degrees on extension, right and left lateral rotation, and right and left lateral flexion with no reduction on repetition. Functional limitation was noted as pain on movement and interference with sitting, standing, and weight-bearing. There was tenderness to the joints and soft tissue throughout the low back which did not result in abnormal gait or spasms. No presence of IVDS was noted. The Veteran used a cane and walker regularly. The most recent VA examination was conducted in December 2014. At that time, range of motion was 90 degrees on forward flexion, 20 degrees on extension, and 30 degrees on right and left lateral rotation and right and left lateral flexion. However, pain on forward flexion began at 20 degrees. Functional loss was noted as less movement than normal, pain on movement, and interference with standing, sitting, and weight-bearing. Tenderness or pain to palpation over the thoracolumbar spine without muscle spasm or guarding was noted. IVDS was present, but there were no incapacitating episodes over the previous 12 months. The Veteran reported using crutches regularly. There were no reported functional limitations during flare-ups or repetitive use. The examiner reported that the diagnosis regarding was changed from IVDS to radiculopathy of the lower left extremity. The Board finds that the rating reduction proper, but only to 40 percent because the July and December 2014 VA examinations demonstrate improvement in the Veteran’s IVDS. The rating criteria contemplate 12-month increments as to when there are incapacitating episodes. To the extent that the Veteran has reported flare-ups requiring him to lie in bed, there is no suggestion that the bedrest was prescribed by a physician as required for the IVDS ratings Thus, affirmative improvement was shown as IVDS was not shown, but in particularly prescribed bed rest due to incapacitating episodes was clearly not shown for this subsequent 12-month period. However, at the December 2014 examination, pain was reported as beginning at 20 degrees on forward flexion. For musculoskeletal disabilities, “painful motion is an important factor of disability.” 38 C.F.R. § 4.59. While painful motion was noted in the rating decision effectuating the reduction, there was no discussion of the functional limitations due to pain as represented by reduced range of motion to 20 degrees. For forward flexion limited to 20 degrees because of pain, a 40 percent rather than 10 percent rating is warranted when the pain results in functional loss to that level. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine. In these examinations, the Veteran reported functional limitation due to pain and reduced range of motion which interfered with sitting, standing, weight-bearing, and walking. On this evidence, the Board finds that the December 2014 demonstrated improvement in the disability, but only to the 40 percent level when evaluating under the alternative General Rating Formula. Thus, the reduction was proper, but only to 40 percent. Therefore, restoration of a 40 percent rating, effective June 1, 2015, is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George