Citation Nr: 18154826 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-58 719A DATE: November 30, 2018 ORDER The reduction in disability rating for lumbar spine strain with mild degenerative changes was not proper; restoration of the 20 percent disability rating, effective March 1, 2016, is granted. FINDINGS OF FACT 1. By a January 2016 rating decision, the RO reduced the assigned disability rating for the Veteran’s lumbar spine disability from 20 percent to 10 percent, effective March 1, 2016. 2. At the time of the reduction, a 20 percent rating for the Veteran’s lumbar spine disability has been in effect for more than five years and the reduction reduced the Veteran’s overall level of compensation and combined disability rating. 3. Sustained material improvement of the Veteran’s ability to function under ordinary conditions of life and work as a result of his lumbar spine disability has not been demonstrated by the preponderance of the evidence. CONCLUSION OF LAW The criteria for restoration of the 20 percent rating for a lumbar spine disability, effective March 1, 2016, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1986 to August 1999. The Board notes that the issues involving increased rating of dependents and increased rating for hemorrhoids are part of different appeal streams that are currently being developed at the RO at the post-notice of disagreement stage and the RO has not yet issued a statement of the case regarding these claims. The Board acknowledges that ordinarily those claims should be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notices of disagreement have been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address these claims at this time. Reduction and Restoration The Veteran asserts that his lumbar spine disability did not improve and the reduction in disability rating from 20 to 10 percent was not proper. Initially, the Board notes that the RO complied with the procedures required under 38 C.F.R. § 3.105(e) (2017) for reducing the Veteran’s disability rating by way of a July 2015 letter notifying him of his rights and also giving him an opportunity for a hearing and time to respond. 38 C.F.R. § 3.105(e) (2017) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. 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) (2017). In this case, the 20 percent disability rating for the lumbar spine disability had been in effect for 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. Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). 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 on the basis of 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 mental or 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). In determining whether a reduction was proper, the Board must focus upon 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 actually improved. Cf. Dofflemyer at 281-282. However, post-reduction evidence may not be used to justify an improper reduction. In considering the propriety of a reduction in this case, a review of the regulations for establishing disability ratings is appropriate. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). In this case, the Veteran’s service-connected lumbar spine disability has been rated pursuant to the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5237 under the General Rating Formula. Under DC 5237, 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 spinal contour; or vertebral body fracture with loss of 50 percent or more body height. 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 greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent is warranted for unfavorable ankylosis if the entire spine. By a March 2010 rating decision, the Veteran’s lumbar spine disability rating was increased to 20 percent based on a November 2009 VA examination report and a March 2010 addendum opinion, which showed forward flexion to 70 degrees and 80 degrees; however, the examiner indicated that during flare-ups or after repeated use there was an additional limitation of motion of the lumbar spine of 15 to 20 degrees. Thereafter, in May 2012, the Veteran filed a new claim for increased rating, which was denied in an April 2013 rating decision, at which time the RO indicated that the record as a whole did not show that sustained improvement had been demonstrated, or that the improvement will be maintained under the ordinary conditions of life. Subsequently, after ordering an additional VA examination, which was held in June 2015, by a January 2016 rating decision the RO reduced the Veteran’s lumbar spine disability rating to 10 percent, effective March 1, 2016. The Board notes that during his February 2013 VA examination forward flexion of the lumbar spine to 70 degrees with objective evidence of pain at 20 degrees and the Veteran reported experiencing flare-ups and functional loss after repeated use; however, the examiner did not discuss whether there was any additional functional loss or limitation of motion after repeated use or during a flare-up. Thereafter, the RO scheduled the Veteran for an additional VA examination, which was conducted in June 2015. At this time, the Veteran reported chronic never-ending constant back pain that was described as stiff ache and required him to take Hydrocodone in order to be able to sleep. The examiner noted that he did not require any assistive devices, was able to continue working full-time, and did not need assistance with activities of daily living. Though, the Veteran stated that he stayed-away from lifting anything heavy. He further reported flare-ups, which were described as “bending and lifting all movements cause increased ache in his back with soreness [and] stiffness.” He also reported functional loss/impairment of the lumbar spine, which was described as decreased motion due to pain. On physical examination, range of motion of the lumbar spine revealed forward flexion to 70 degrees; extension to 30 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 20 degrees, bilaterally. The examiner stated that range of motion itself as well as that pain noted during the examination contributed to functional loss. There was evidence of pain with weight-bearing and localized tenderness to palpation of the lower lumbar spine that did not result in abnormal gait or spinal contour. The Veteran completed repetitive use testing that did not result in any additional loss of function or range of motion. The examiner then stated that the Veteran was not examined immediately after repetitive use over time, but noted that the examination was medically consistent with the Veteran’s statements describing functional loss after repeated use. Nevertheless, the examiner stated that it was not possible to indicate without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time, since he was not examined after repetitions over time. Although the examiner stated that the examination was not conducted during a flare-up, it was estimated that due to pain, forward flexion will be limited to 65 degrees, while all other ranges of motion will remain the same. The Board finds some deficiencies with the June 2015 VA examination. Notably, all the available objective medical evidence since the Veteran’s lumbar spine disability rating was increased to 20 percent showed forward flexion of the lumbar spine to 70 degrees. Furthermore, prior and subsequent to the reduction, the Veteran continued to report flare-ups and functional loss after repeated use. Nevertheless, the June 2015 VA examiner stated that it was not possible to estimate without resorting to mere speculation whether there will be additional loss of function or limitation of range of motion after repeated use. In this regard, the Board notes that the examiner did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss after repeated use. The Court held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large” and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Additionally, although the June 2015 VA examiner estimated that during a flare-up the Veteran’s forward flexion will decrease to 65 degrees, the Board finds that this estimation is not consistent with the evidence of record. Notably, the November 2009 VA examiner (who also provided the March 2010 addendum opinion) estimated a loss in range of motion between 15 and 20 degrees during a flare-up or after repeated use. Here, despite the Veteran’s competent lay assertions that his back disability worsened and his continuous reports of flare-ups, the examiner estimated a loss of motion of only 5 degrees, but failed to address the overall picture of the disability, or acknowledge the prior VA examiner’s estimations of additional loss of range of motion. Significantly, while in April 2013, the RO concluded that the record as a whole did not show that sustained improvement had been demonstrated, or that the improvement will be maintained under the ordinary conditions of life, it is unclear to the Board how the subsequent June 2015 examination was any different than the February 2013 VA examination in terms of sustained improvement under the ordinary conditions of life. On the contrary, during the June 2015 VA examination, the Veteran reported that his lumbar spine disability increased in severity. Upon review of this evidence, the Board finds that the evidence weighs against a finding of an improvement in the Veteran’s lumbar spine disability at the time of the reduction under the ordinary conditions of life and work between the November 2009 and June 2015 VA examinations. Although the June 2015 VA examiner estimated the degree of limitation of motion during a flare-up to be higher than estimated in November 2009 and March 2010, the Veteran still had the same complaints of continued, progressive pain with flare-up and increased pain with activities after repeated use. Furthermore, such is supported by his ongoing treatment records, which continued to show complaints of chronic back pain that was treated with medication. Therefore, the Board cannot find that the evidence supports a finding that the Veteran’s lumbar spine disability resulted in an improvement in his ability to function under the ordinary conditions of life and work at any time. Accordingly, the Board finds that the rating reduction from 20 percent to 10 percent was improper because the evidence of record does not show an improvement in the Veteran’s lumbar spine disability under the ordinary conditions of life and work. The Board, therefore, restores the 20 percent rating for a lumbar spine disability, effective March 1, 2016. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel