Citation Nr: 18153906 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-15 048 DATE: November 28, 2018 ORDER Restoration of the 40 percent disability rating for lumbosacral strain, effective October 1, 2015, is granted. REMANDED A disability rating in excess of 30 percent for an anxiety disorder is remanded. A disability rating in excess of 40 percent for lumbosacral strain is remanded. FINDINGS OF FACT 1. The Veteran's service-connected lumbosacral strain was rated as 40 percent disabling for less than five years when the RO, in a June 2014 rating decision, proposed to reduce the rating. The reduction to a 40 percent rating was implemented in a July 2015 decision, effective October 1, 2015. 2. When the July 2015 rating decision reduced the rating for the Veteran's lumbosacral strain, the evidence did not show improvement in the service-connected disability, including an actual improvement in her ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The 40 percent rating for lumbosacral strain from October 1, 2015 is restored. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 2009 to February 2010 and July 2011 to September 2012, with a prior period of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2015 decision, the rating assigned for lumbar spine disability was reduced from 40 percent to 20 percent. While the appeal stemmed from a claim for a higher rating, and was characterized as a claim for an increased rating in the February 2016 statement of the case (SOC), in the Veteran’s notice of disagreement she clearly disagreed with the rating reduction. The Board thus finds that the rating restoration claim is part and parcel of the appeal, and it has thus been included above. The Board finds this to be most consistent with the Veteran’s intentions; moreover, no prejudice can result as the rating is being restored. Additionally, as discussed in the remand below, the Veteran has requested initial RO review of evidence associated with the file since the February 2016 SOC, however, as the rating restoration claim is being granted in full, the Board finds no prejudice in adjudicating this matter without remand. Rating Reduction Disability ratings may be reduced, however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary In particular, 38 C.F.R. § 4.13 requires that in any rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement in a disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. § 3.344(c), applicable to ratings such as these, in effect for less than 5 years, requires improvement before an evaluation is reduced. Implicit in the regulations is the notion that any improvement must be of such a nature as to warrant a change in the evaluation. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. Here, service connection was granted and a noncompensable rating (0%) assigned for her lumbosacral strain in a May 2011 rating decision. In an October 2013 rating decision, a 40 percent disability rating was assigned. This rating was based on the results of a September 2013 VA examination report. At that examination, the Veteran reported having constant radiating pain, and flare-ups on physical exertion due to her low back disability. She reported, however, that she was not limited in performing any physical activities due to her back. Flexion was to 80 degrees, extension was to 20 degrees, and bilateral lateral rotation and bilateral lateral flexion were to 30 degrees or greater. The examiner found that the disability did not impact her ability to work. The Veteran subsequently filed a claim for a higher rating for her lumbar spine disability and she was scheduled for a VA examination to assess the severity of her lumbosacral strain. On that examination in April 2014, she reported an average pain level of 7/10, and that back pain interfered with her ability to sleep. She asserted that she could no longer sit for longer than 40 minutes, walk for longer than 30 minutes, or perform activities, such as washing dishes, that required her to bend forward for a prolonged period. She continued to have flare-ups. On examination, flexion was to 60 degrees, extension was to 15 degrees, bilateral lateral flexion was to 20 degrees, and bilateral lateral rotation was to 30 degrees or greater. The examiner found that the lumbar spine disability impacted the Veteran’s ability to work in that prolonged sitting worsened her back pain, she was required to get up often, and the disability required treatment with pain medication. In a June 2014 rating decision, the RO proposed to reduce the rating to a 20 percent level based on the April 2014 report, stating that the criteria for a 40 percent rating had not been met. In March 2015, another VA examination was conducted. The Veteran reported that over the past several months, she had become unable to sit. A standing desk had been installed for her at her work station. She reported having problems dressing herself due to difficulty bending forward. She reported ongoing flare-ups that were no longer responsive to medication. On examination, flexion was to 45 degrees, extension was to 15 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 25 degrees, and bilateral lateral rotation was to 30 degrees. The examiner found that the lumbar spine disability impacted the Veteran’s ability to work in that she could no longer sit and had to have a standing desk installed at her station. In July 2015, the rating reduction of 40 percent to 20 percent was implemented, effective October 1, 2015. Applying the facts to the criteria discussed above, the Board finds the evidence before the RO in July 2015 did not indicate overall improvement in the Veteran’s service-connected lumbar spine disability, including an actual improvement her ability to function under the ordinary conditions of life and work. The dispositive issue here is whether her disability improved, not whether the specific criteria delineated in the rating criteria for a 40 percent rating had been met. Significantly, in contrast to the September 2013 examiner’s finding of no impact of the disability on occupational activities, both the April 2014 and March 2015 examiners described various impacts in this regard, including that she had become unable to sit and required a standing desk to be installed at her work station. The Veteran also reported a more significant impact of her disability on overall functioning at the latter examinations, when compared to the September 2013 report. Specifically, while she reported that her disability caused no limitation on any physical activity in September 2013, at the later examinations she reported that pain interfered with sleep and resulted in an inability to sit for longer than 40 minutes, walk for longer than 30 minutes, or bend forward for prolonged periods. Her disability had also become less responsive to pain medication. Further, her objective range of motion findings in the parameters of flexion, extension, and bilateral lateral flexion were each consistently worse on VA examinations in April 2014 and March 2015 when compared to the September 2013 examination report. Also, the March 2015 VA examination report is of reduced probative value as the examiner did not indicate that the entire claims file was reviewed; rather, she stated that only VA treatment notes were assessed. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). It cannot be stated with any certainty that there has been actual improvement of the Veteran’s service-connected lumbosacral strain since the time the 40 percent rating was established. Thus, the 40 percent rating is restored, effective October 1, 2015. REASONS FOR REMAND In October 2018, the Board sent the Veteran a letter to ask whether she waived her right to have the case remanded to the RO for initial review of evidence associated with the file since the February 2016 and June 2016 statements of the case (SOCs). She replied that she did not waive initial RO review, and asked the Board to remand the case to the RO. The appeal must be remanded for this purpose The matters are REMANDED for the following action: In accordance with the Veteran’s October 2018 request for initial RO review of evidence received since the February 2016 and June 2016 SOCs, readjudicate the claims, considering all evidence. If the benefits sought remain denied, provide a SSOC. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel