Citation Nr: 18153385 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 13-32 131 DATE: November 27, 2018 ORDER Entitlement to restoration of a 60 percent rating for lumbar spine degenerative disc and joint disease (DDD/DJD) with intervertebral disc syndrome (IVDS) is granted. Entitlement to a rating in excess of 60 percent for lumbar spine DDD/DJD with IVDS is denied. FINDINGS OF FACT 1. The Veteran’s service-connected lumbar spine DDD/DJD with IVDS was rated 60 percent disabling for less than five years when the RO, in an August 2012 rating decision, reduced the rating to 10 percent, effective March 13, 2012. 2. At the time of the August 2012 rating decision which reduced the rating for the Veteran’s lumbar spine DDD/DJD with IVDS, the evidence did not show that improvement in the service-connected disability would be maintained under the ordinary conditions of life. 3. Unfavorable ankylosis of the entire spine is not demonstrated. CONCLUSIONS OF LAW 1. The 60 percent rating for lumbar spine degenerative DDD/DJD with IVDS is restored. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Codes (DC) 5243 (2017). 2. The criteria for a rating in excess of 60 percent for lumbar spine DDD/DJD with IVDS have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a including DC 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1997 to December 2000, and from February 2004 to December 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the RO. An essential issue in this case is the propriety of the reduction of the rating for the Veteran’s lumbar spine DDD/DJD with IVDS from 60 to 10 percent effective March 13, 2012. Thus, although the issue has previously been characterized as entitlement to an increased rating for lumbar spine DDD/DJD with IVDS more than 10 percent prior to May 12, 2014, and more than 20 percent from May 12, 2014 (see AB v. Brown, 6 Vet. App. 35 (1993)), it has been recharacterized as indicated above and in that vein addressed below. In an October 2013 Substantive Appeal, the Veteran requested a Board video-conference hearing. A Board hearing was scheduled for February 6, 2017. In January 2017, the Veteran requested that the hearing be cancelled. Accordingly, the request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. 1. Entitlement to restoration of a 60 percent rating for lumbar spine DDD/DJD with IVDS There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to consider when determining whether a reduction in a rating is warranted. In this regard, 38 C.F.R. § 3.344(a) notes that 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 Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated because of general examination and the entire case history. Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ____ months from this date, § 3.344.” The rating agency will determine of the basis of the facts in each individual case whether 18, 24, or 30 months will be allowed to elapse before the reexamination will be made. 38 C.F.R. § 3.344(b). The provisions of paragraphs (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The 60 percent rating for the Veteran’s lumbar spine DDD/DJD with IVDS was awarded effective May 26, 2009, and was reduced effective March 26, 2012, less than 5 years later. Accordingly, reexaminations disclosing improvement, physical or mental, in a service-connected disability will warrant a reduction in rating. 38 C.F.R. § 3.344(c). However, the Court has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” Brown at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has occurred, but also that improvement reflects an improvement under the ordinary conditions of life and work. Here, the Veteran was granted service connection for IVDS of the lumbar spine in an October 2009 rating decision. He was assigned a 60 percent disability rating, effective May 26, 2009. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assignable 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. A 40 percent rating is assignable where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. IVDS is evaluated under the general rating formula or based on incapacitating episodes. Under the formula for rating IVDS based on incapacitating episodes, a 10 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). An April 2009 statement from the Veteran’s employer comprehensive disability plan (CDP) documents that the Veteran had used 130 hours of Family Medical Leave Act (FMLA) during the eligibility period. A May 2009 statement from the Veteran’s treating physician reflects the physician’s recommendation that the Veteran get as much bed rest and engage in no weight bearing activities as much as possible. The physician concluded that the Veteran would need treatment indefinitely. The July 2009 report of VA examination documented the Veteran’s complaint of constant lower back pain with radiation to the left lower extremity. He complained the pain was of a moderate degree of severity. The pain was exacerbated by physical activity and prolonged sitting and relieved by rest and medication. Over the past 12 months, he reported 10 days of incapacitating episodes with physician prescribed bed rest. Examination showed paralumbar spine tenderness with left para-lumbosacral muscle spasm. Muscle spasm did not produce abnormal gait. Spinal contour was preserved though there was guarding of movement without production of abnormal gait. There was no ankylosis of the thoracolumbar spine. He had flexion to 75 degrees (with pain at 45 degrees), extension to 20 degrees (with pain at 15 degrees), lateral flexion to 25 degrees bilaterally (with pain at 20 degrees bilaterally) and rotation to 25 degrees bilaterally (with pain at 20 degrees bilaterally). On repetitive motion testing, flexion was limited to 45 degrees (i.e., an additional 30 degrees of limitation), extension to 15 degrees (i.e., an additional 5 degrees of limitation), lateral flexion to 20 degrees bilaterally (i.e., an additional 5 degrees of limitation bilaterally) and rotation to 20 degrees bilaterally (i.e., an additional 5 degrees of limitation bilaterally). Pain, fatigue and lack of endurance caused this additional limitation on repetitive use. He did have abnormal curve of the spine, reversed lordosis. In the rating decision of August 2012, the RO reduced the evaluation of the Veteran’s lumbar spine DDD/DJD with IVDS from 60 percent to 10 percent, effective March 13, 2012. The reduction was based on the VA examination of March 2012. The March 2012 VA examination report reflects the Veteran’s complaint of lumbar spine pain with prolonged standing and bending. Examination showed tenderness over the lumbar spinous processes; there was no guarding or muscle spasm of the thoracolumbar spine. He had flexion to 75 degrees (with pain at 75 degrees), extension to 20 degrees (with pain at 20 degrees), lateral flexion to 25 degrees bilaterally (with pain at 25 degrees) and rotation to 25 degrees bilaterally (with pain at 25 degrees). He did not have additional loss of motion following repetitive use. His IVDS of the thoracolumbar spine was not productive of incapacitating episodes requiring physician prescribed bed rest. The March 2012 examination report documented above seems to show improvement in the Veteran’s range of motion of the lumbar spine and a lack of incapacitating episodes of IVDS as compared to the July 2009 VA examination used to justify assignment of the 60 percent rating for the lumbar spine DDD/DJD with IVDS (forward flexion to 45 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally and rotation to 20 degrees bilaterally on repetitive use testing; 10 days of incapacitating episodes of IVDS). However, the Board notes that in the August 2012 rating decision that promulgated the reduction, while noting the improvement in the range of motion and lack of incapacitating episodes of IVDS, the RO did not consider whether the evidence made it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Such failure constitutes error. Here, the Veteran has consistently reported constant pain associated with his lumbar spine disability This evidence does not suggest that the improvement was maintained under the ordinary conditions of life. Moreover, the RO’s subsequent adjustment of the Veteran’s rating to 20 percent in the February 2015 rating decision confirms that improvement was not maintained under the ordinary conditions of life. In sum, the Veteran’s range of motion and incapacitating episodes of IVDS has varied over time. However, the Board is not convinced that the changes were anything other than variations during the process. Given the above evidence, it cannot be stated with any certainty that improvement had been maintained under the ordinary conditions of life. Accordingly, the 60 percent rating for the Veteran’s lumbar spine DDD/DJD with IVDS is restored. 2. Entitlement to a rating in excess of 60 percent for lumbar spine DDD/DJD with IVDS Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). 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. See 38 C.F.R. § 4.7. The RO evaluated the Veteran’s lumbar spine DDD/DJD with IVDS under diagnostic codes (DC) 5243, the criteria for evaluating IVDS. As explained above, IVDS is evaluated under the general rating formula for rating diseases of the spine or based on incapacitating episodes. Again, the March 2012 VA examination report reflects the Veteran’s complaint of lumbar spine pain with prolonged standing and bending. Examination showed tenderness over the lumbar spinous processes; there was no guarding or muscle spasm of the thoracolumbar spine. He had flexion to 75 degrees, extension to 20 degrees, lateral flexion to 25 degrees bilaterally and rotation to 25 degrees bilaterally (with pain at endpoints in all planes of motion). He did not have additional loss of motion following repetitive use. His IVDS of the thoracolumbar spine was not productive of incapacitating episodes requiring physician prescribed bed rest. The May 2014 report of VA examination documents the Veteran’s complaint of constant pain in his lower back with radiation to his left toe. He was prescribed Vicodin, Motrin and muscle relaxers for his back pain. Range of motion was as follows: flexion to 45 degrees (with objective evidence of painful motion at 45 degrees), extension to 10 degrees (with objective evidence of painful motion at 10 degrees), lateral flexion to 15 degrees bilaterally (with objective evidence of painful motion at 15 degrees bilaterally) and rotation to 20 degrees bilaterally (with objective evidence of painful motion at 20 degrees). On repetitive use testing, he had no additional limitation in range of motion. He exhibited tenderness in the paraspinal muscles; however, he did not experience guarding or muscle spasm of the thoracolumbar spine. His IVDS had not been productive of incapacitating episodes requiring physician prescribed bed rest in the past year. His lumbar spine disability impacted his ability to work in that he could not engage in repetitive bending, stooping, crouching or heavy lifting. The 60 percent rating is the maximum rating for IVDS under the formula for rating IVDS based on incapacitating episodes. To warrant a rating more than 60 percent under the general rating formula for diseases of the spine, there must be evidence of unfavorable ankylosis of the entire spine. There has been no documentation of ankylosis of the thoracolumbar spine. Thus, the preponderance of the evidence is against a rating more than 60 percent for lumbar spine DDD/DJD with IVDS and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). (Continued on the next page)   The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel