Citation Nr: 18154684 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-16 730 DATE: November 30, 2018 ORDER Restoration of a 20 percent rating for degenerative joint disease of the lumbar spine is granted. REMANDED Entitlement to total rating based on individual unemployability due to service-connected disability (TDIU) to include extra-schedular consideration is remanded. FINDING OF FACT The appellant’s disability evaluation for degenerative joint disease of the lumbar spine, was reduced by a November 2013 rating decision effective from November 8, 2013, without any notification of a proposed reduction (setting forth all material facts and reasons), or affording the appellant 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level prior to the effective date of the reduction. CONCLUSION OF LAW The criteria for restoration of a 20 percent evaluation for degenerative joint disease of the lumbar spine, effective November 8, 2013, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105 (e), 4.71a, Diagnostic Code 5010-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from July 1982 to March 2006. 1. Restoration of a 20 Percent Rating for Degenerative Joint Disease of the Lumbar Spine The appellant seeks restoration of a 20 percent rating for his service-connected degenerative joint disease of the lumbar spine. The Board concludes that restoration of the 20 percent rating is warranted because (1) the procedural requirements for a reduction in rating were not satisfied under 38 C.F.R. § 3.105(e), and (2) the evidence does not clearly warrant the conclusion that sustained improvement is demonstrated, as required by 38 C.F.R. § 3.344. The record reflects that, in July 2006, the Agency of Original Jurisdiction (AOJ) granted the service connection for lumbar spine disability and assigned a 20 percent schedular rating, effective April 1, 2006. In November 2011, VA received a claim for increase. In August 2012, the AOJ denied that claim. In November 2013, the AOJ reduced that rating to noncompensable, effective November 8, 2013 based on April 2013 VA examination findings. As to procedure, the record shows that the reduction was implemented by the AOJ without notice of a proposed action, which resulted in an overall decrease in the appellant’s combined rating. A November 2013 rating decision code sheet shows that the reduction from 20 to 0 percent for lumbar spine disability also resulted in a reduction of the appellant’s combined evaluation from 90 to 80 percent. Regulations require that VA provide notice of a proposed reduction (setting forth all material facts and reasons), and afford the 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 C.F.R. §§ 3.105 (e). This was not accomplished in this case. Therefore, absent adherence to the relevant regulatory procedures, reduction of the 20 percent rating was not valid. As to the factual basis of the reduction, the evidence does not clearly warrant the conclusion that sustained improvement is demonstrated, as required by 38 C.F.R. § 3.344. Where an evaluation has continued at the same level for five or more years, 38 C.F.R. § 3.344 (a) and (b) are for application. 38 C.F.R. § 3.344(a) provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA 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 as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where 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). In this case, the record shows that the AOJ reduced the rating on the basis that VA medical records dated prior to the reduction had shown the appellant to be active; that he worked out four times a week, lifted weights, and hunted and fished. While the AOJ found such activity inconsistent with a compensable back disorder, VA disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. In this case, the appellant’s lumbar spine disability was rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The manifestations to be considered include the limitation of lumbar spine motion, muscle spasm, abnormal gait, and abnormal spinal contour. When rating disabilities on the basis of limitation of motion, VA also considers the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, neither the noted manifestations nor the factors associated with functional impairment were cited in making the reduction. In fact, VA treatment records show the appellant continued to complain of approximately the same degree of low back pain from the time the 20 percent rating was assigned until it was reduced to noncompensable. Accordingly, the reduction of the 20 percent rating was not warranted on a factual basis. To the extent that VA examination showed that the Veteran had lumbar spine disability related to job injury, which was not a progression of his service-connected disability, this does not really address whether there was sustained improvement reasonably certain to be maintained under the ordinary conditions of life of the service-connected component of the Veteran’s back disabilty. In light of the foregoing discussion, the appellant meets the criteria for restoration of the 20 percent rating for degenerative joint disease of the lumbar spine, effective November 8, 2013. To that extent only, the appeal is granted. It is noted that, in his substantive appeal (VA Form 9), received in May 2015, the appellant clarified that he was only seeking restoration of the 20 percent rating.   REASONS FOR REMAND 2. Entitlement to TDIU is remanded. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Intercurrent disability, may not be used as a basis for a total rating. 38 C.F.R. § 4.19. In this case, the appellant has a combined rating in excess of 70 percent for the following disabilities: headaches, evaluated as 30 percent disabling; vertigo, evaluated as 30 percent disabling; degenerative joint disease of the lumbar spine, evaluated as 20 percent disabling; radiculopathy of the upper extremities, each evaluated as 20 percent disabling; right shoulder strain, evaluated as 10 percent disabling; degenerative joint disease of the cervical spine, evaluated as 10 percent disabling; degenerative joint disease of the right elbow, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; gastroesophageal reflux disease, evaluated as 10 percent disabling; costochondritis, evaluated as noncompensable; allergic rhinitis, evaluated as noncompensable; and hypertension, evaluated as noncompensable. However, he does not have a single disability rated at 40 percent. However, notwithstanding whether the schedular requirements are met, the salient question is whether the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. On August 10, 2011, the appellant injured his back at work and sustained a multilevel lumbar disc disorder. Thereafter, he received multiple epidural steroid injections, and in February 2012, he underwent a midcrodiskectomy at L2-L3. He received Workman’s Compensation, and in October 2012, he filed a successful claim for Social Security Disability benefits. An Administrative Law Judge with the Social Security Administration found that the appellant had been disabled since August 10, 2011. To date, only partial Workman’s Compensation records and Social Security records have been associated with the appellant’s claims file. Following an April 2013 VA examination, the examiner opined that the appellant’s lumbar spine disorder, vertigo, and headaches, especially when combined, precluded him from obtaining or maintaining gainful employment at that time. However, it is unclear if any of those disabilities, individually, would render the appellant unemployable or if a combination of two of those disabilities, e.g., vertigo and headaches, would preclude the appellant from obtaining or maintaining gainful employment. Moreover, the examiner noted, that it was possible that with improvement of some of those conditions, the appellant would again become employable according to the VA standards. However, the examiner could not opine when that would be without resorting to mere speculation. The appellant has not been examined by VA since 2013. To ensure VA has met its duty to assist, remand is necessary to obtain outstanding records and obtain a new examination for TDIU purposes. The matter is REMANDED for the following action: 1. Obtain copies of the appellant’s Workman’s Compensation records and Social Security records and associate them with the claims file. Such records should include, but are not limited to, award letters, medical records, and administrative decisions. 2. When the actions in part 1 have been completed, schedule the appellant for a VA examination to assess the functional impact of his service-connected disabilities on his daily activities, including work and his activities of daily living. In his or her assessment, the examiner must consider the frequency, severity, and duration of any incapacitating exacerbations of the appellant’s service-connected disabilities only both individually and collectively. For all opinions, the examiner must state HOW AND WHY he or she reached the opinion they did. If it is not possible to provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Consider whether referral for extraschedular TDIU is warranted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel