Citation Nr: 18153714 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-37 607 DATE: November 28, 2018 ORDER The rating reduction for lumbar strain from 20 percent to 10 percent, effective May 1, 2015, was improper; and the 20 percent rating is restored. FINDINGS OF FACT 1. In a May 2015 decision, the RO reduced the rating for the Veteran's service-connected lumbar strain from 20 to 10 percent disabling from May 1, 2015. The 20 percent rating had been in effect for more than 5 years. 2. There was no sustained improvement in the service-connected lumbar spine disability demonstrated that is reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction in the rating assigned for lumbar strain, from 20 to 10 percent, effective May 1, 2015, was not proper; restoration of the 20 percent rating is warranted. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.105, 3.344, 4.118, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1999 to December 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which decreased the rating for the Veteran's lumbar strain, from 20 to 10 percent, effective May 1, 2015. Rating Reductions When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. §3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. §3.344. With regard to the initial question, when a reduction in the evaluation of a service-connected disability is considered warranted 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 or her latest address of record of the contemplated action and furnished detailed reasons therefore. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. §3.105(e), (i). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. §3.105. In this case, the 20 percent disability rating for lumbar strain was in effect from August 11, 2005 to May 1, 2015, a period of more than five years. Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) apply, which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. Where a rating has been in effect for five years or more, as in this case, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for disease subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical 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). 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). The question of whether a disability has improved involves consideration of the applicable rating criteria. Disability evaluations are determined by the application of a schedule of ratings that is based as far as practical on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show that the disability has worsened. 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 evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-282. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Propriety of the reduction from 20 percent disabling to 10 percent disabling for lumbar strain. Since August 2005, the Veteran's lumbar strain has been rated under Diagnostic Code (DC) 5237. DCs 5237 through 5243 are applicable to the spine. The General Rating Formula for Diseases and Injuries of the Spine provides that 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 10 percent rating is assigned 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 spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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 is 240 degrees for the thoracolumbar spine. 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. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The 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 innervation, or other pathology, or 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Turning to the evidence, the Board notes that prior to the grant of service connection and assignment of a 20 percent initial rating, the Veteran underwent a VA examination in November 2005. Examination showed the normal spine curves were maintained. There was no tenderness to palpation over the spine or paraspinous musculature. Range of motion in forward flexion was to 45 degrees. Hyperextension was to 20 degrees. Rotation was to 40 degrees on the right side and 30 degrees on the left side. Lateral bending was to 25 degrees on the right side and 15 degrees on the left side. Straight leg raises were negative bilaterally. Musculature was fully developed with no atrophy noted. Sensation was normal in the bilateral lower extremities. Deep tendon reflexes were 2+ without clonus. Gait was within normal limits. The examiner reported there was limitation of activity related to pain resulting in decreased range of motion. The examiner reported that the Veteran was unable to perform repetitive movements due to pain and discomfort and therefore, the examiner could not state whether there were additional limitations resulting from repetitive movements. The examiner provided a diagnosis of lumbar strain with bilateral lower extremity hypoesthesia. In a November 2005 rating decision, a 20 percent rating was assigned based on forward flexion of 45 degrees. It was noted that there was a likelihood of improvement such that the assigned evaluation was not considered permanent and would be subject to a future review examination. The Veteran was scheduled for an additional VA examination in September 2014, but failed to attend without demonstrating good cause. In an October 2014 statement, the Veteran indicated he could not attend the VA examination due to a lack of transportation, and requested that his examination be rescheduled to another date. In a February 2015, the Veteran underwent another VA spinal examination. The Veteran reported Chronic daily pain in low back. Worse when stand and was dishes x 10-20 min, sitting in one position over 10-15 min (he stood up to stretch several times during his appointment today). Doing the laundry, sexual intercourse also bothers his back. It is difficult to lift and carry over 25 pounds. Forward flexion was to 80 degrees with painful motion beginning at 85 degrees. Extension, right and left lateral flexion, and right and left lateral rotation were to 30 degrees or greater with painful motion beginning at 30 degrees. The examiner found that the Veteran’s pain and limitation in motion resulted in functional loss. The examiner stated In "Functional loss and additional limitation in ROM", it is my opinion that no additional limitation due to pain, weakness, fatigability, or incoordination significantly limiting functional ability during flare-ups or when joint is used repeatedly over a period of time. No additional ROM loss due to pain, weakness, fatigability or incoordination on use was identified on repeated movements on today's exam. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion. Less movement than normal and pain on movement were noted to cause functional impairment of the back. His condition was noted to have limitations in heavy lifting, repetitive stooping, bending, prolonged standing and prolonged walking. In a February 2015 rating decision, the RO reduced the Veteran's rating from 20 percent to 10 percent based on improved forward flexion. In a March 2015 notice of disagreement, the Veteran stated I recently reported to my evaluation appointment to discuss some new problems that have come up since my first evaluation. After I finished with the routine checklist of the appointment, I began to explain the new issues I was having. I explained to the doctor that while engaging in intercourse with my wife that I am experiencing extreme pain followed by numbing and spasms that cause me to lose my erection and to sit down. In addition to that I explained to him that normal household duties such as dishes, laundry, and kneeling down to pick things up are causing pain numbing as well. When the appointment was coming to an end I felt confident that I had explained the problems I was having. Then I received a notice saying that my 20% was being reduced to 10% that my injury was improving which is not acceptable because I feel that I have not improved. In a May 2015 Statement in Support of Claim, the Veteran contended that the VA examination was inadequate. Specifically, the Veteran stated So, to be clear, I think: that exam was rather poor and didn’t do a good job of capturing my concerns, I base this not only on my experience with the examiner but also the fact that my back has gotten worse compared to when I was originally rated and so your proposal to reduce doesn’t seem to make any sense based on my day-to-day experiences. In an April 2016 VA examination, the Veteran indicated that he had back pain, which resulted in limitations in standing, sitting, lifting and personal relations. The examination found forward flexion was to 90 degrees with painful motion beginning at 60 degrees. Extension, right and left lateral flexion, and right and left lateral rotation were to 30 degrees or greater, with pain on right lateral rotation. The Veteran was able to perform repetitive-use testing without additional limitation in range of motion. Less movement than normal and pain on movement were noted to cause functional impairment of the back. His condition was noted to limit heavy lifting, repetitive stooping, bending, and prolonged standing. In a June 2016 Statement of the Case, the RO confirmed the reduction based on a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. Based on the above, the evidence does not support a finding that overall improvement of the service-connected lumbar strain had occurred when the reduction was effectuated in February 2015. Since November 2005, the Veteran has experienced pain in his lower back that limited activities such as bending, heavy lifting, repetitive stooping, prolonged standing, and prolonged walking. Notably, further functional limitation under the ordinary conditions of life were demonstrated at the 2015 and 2016 examinations than at the 2005 examination and by 2015, the Veteran was having greater limitations in standing, walking, and sitting indicating a worsening of his overall condition despite improved forward flexion. Looking at the evidence in the light most favorable to the Veteran, the Board cannot conclude that the weight of the evidence shows a material improvement in the Veteran's back condition that is reasonably certain to be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344; Brown v. Brown, 5 Vet. App. 413 (1993). Additionally, the AOJ failed to make such a finding which renders the reduction void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Accordingly, the Board finds that reduction was improper and that the Veteran is entitled to restoration of the 20 percent rating for lumbar strain effective the date of the reduction, May 1, 2015. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor