Citation Nr: 18158668 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 15-37 221 DATE: December 18, 2018 ORDER The 30 percent rating for a cervical spine disability is restored. A rating in excess of 30 percent for a cervical spine disability is denied. FINDINGS OF FACT 1. In a January 2015 rating decision, the RO reduced the Veteran’s rating for cervical spine degenerative disc disease status post diskectomy and fusion from 30 to 20 percent. 2. At the time of the January 2015 reduction, the 30 percent rating for the cervical spine disability had been in effect for over five years. 3. Resolving reasonable doubt in the Veteran’s favor, the VA spine examination did not demonstrate that her cervical spine disability underwent a material improvement that would be maintained under the ordinary conditions of life. 4. The Veteran’s cervical spine disability has not manifested by unfavorable ankylosis of the entire cervical spine nor unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The reduction of the rating for a cervical spine disability was not proper and restoration of the 30 percent rating, effective April 1, 2015, is warranted. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating in excess of 30 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to October 1993. The Veteran requested a travel Board hearing. In April and August 2016 correspondence, the Veteran withdrew her hearing request. Under 38 C.F.R. § 20.704(e), a request for a hearing may be withdrawn by the Veteran at any time before the hearing. Thus, the Veteran’s hearing request is deemed withdrawn. 1. Rating reduction: Cervical spine A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon 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. Thus, 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 actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. 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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate entitlement to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ’s reduction was warranted. Kitchens, 7 Vet. App. 320 (1995). The RO assigned a 30 percent rating based on forward flexion of the cervical spine to 10 degrees following repetitive motion testing, as set forth in more detail in the June 2010 rating decision. The Veteran then submitted an increase rating claim for her cervical spine disability in June 2011. The Veteran then underwent a VA spine examination in January 2012. This examination served as the basis for the RO’s proposed rating reduction in a March 2012 rating decision, and implementation of the reduction in a January 2015 rating decision. The January 2015 rating decision made the reduction effective April 1, 2015. Here, the Veteran’s rating has been an effect for five years or more. This is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. See Brown v. Brown, 5 Vet. App. 413 (1993). Upon review of the procedural documents, the Board finds that the reduction in this case was not proper. Because the Veteran’s disability rating was in effect for greater than five years, albeit by one month, the heightened protections of 38 C.F.R. § 3.344 (a) and (b) apply. In this case, the AOJ made no findings with regards to any of the provisions of 38 C.F.R. § 3.344(a), including whether there was material improvement and that the material improvement would be maintained in the ordinary conditions of life. While the January 2012 VA spine examination on which the Veteran’s reduction was predicated showed improvement in the range of motion of the cervical spine; in affording the Veteran the benefit-of-the-doubt, the Board concludes that material improvement maintained under the ordinary conditions of life has not been shown. Notably, the examiner’s remarks on functional impact of the Veteran’s cervical spine disability were mere recordation of the Veteran’s complaints regarding problems with her hands and upper extremities. There is nothing for the Board to go on as to whether the demonstrated improvement in the cervical spine’s range of motion during the January 2012 VA examination translated into a material improvement that would be maintained in the ordinary conditions of life and work. The January 2012 VA spine examination is inadequate for purposes of reducing the rating. No medical examiner has opined on whether the demonstrated improvement, as evidenced by the increase in range of motion of the cervical spine, would be sustained. A mere recitation of the Veteran’s self-reported complaints of symptoms and their impact, does not transform such lay statements into an expert medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examination report does not speak to the occupational impact of the Veteran’s cervical spine disability, what it contains is arguably the Veteran’s complaints of her service-connected bilateral upper extremity radiculopathy which has no bearing on this issue. See 38 C.F.R. § 4.71a, Spine Note 1 (rate associated objective neurologic abnormalities separately); but see Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (Board may not make its own medical findings). Simply put, no one has opined on whether there has been occupational improvement of the cervical spine to support the reduction. Similarly, neither the January 2015 rating decision nor the September 2015 statement of the case discussed whether the evidence demonstrated a material improvement that would be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995). In reaching the above decision, the Board is aware that a March 2012 rating decision denied entitlement to a total disability rating based on individual unemployability (TDIU), which the Veteran was informed of in the accompanying letter. She did not appeal the denial and thus TDIU is not before the Board. However, the accompanying letter indicated that the RO’s denial of TDIU was based on the fact that the Veteran did not meet the schedular requirements pursuant to 38 C.F.R. § 4.16. Hence, there has been no finding as to the occupational impact attributable to the cervical spine disability during the appellate period. It is this absence in the record of the occupational impact of the Veteran’s cervical spine disability (improvement or lack thereof) that forms the basis of the Board’s rejection of the RO’s reduction in the instant appeal. Accordingly, the Board finds that the Veteran’s cervical spine rating reduction was not proper because the AOJ failed to assure that there was a material improvement in the Veteran’s cervical spine that would be maintained in the ordinary conditions of life and work. In the absence of evidence of sustained, material improvement, there can be no reduction. See 38 C.F.R. § 3.344(a). In conclusion, the reduction of the rating for the Veteran’s cervical spine disability from 30 to 20 percent was inappropriate under the circumstances presented. Accordingly, resolving all reasonable doubt in her favor, the Board finds that the 30 percent rating be restored. 2. Increased rating: Cervical spine The Veteran contends that her cervical spine disability warrants a higher rating. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s service-connected cervical spine disability has been rated as 30 percent disabling under Diagnostic Code 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, there is no evidence suggestive of incapacitating episodes due to IVDS to warrant a compensable rating, and thus the General Rating Formula for Disease and Injuries of the Spine will be applied to the Veteran’s cervical spine disability. Under the General Rating Formula for Diseases and Injuries of the Spine, 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, Diagnostic Codes 5243 provides that a 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Spine, Note 5. Throughout the appeal period, the Board finds that the Veteran’s cervical spine disability has not manifested by ankylosis of any kind. The January 2012 VA spine examination demonstrated that the Veteran had forward flexion of the cervical spine to 30 degrees on initial range of motion testing. She was able to perform repetitive use testing with no additional loss in her range of motion. While private and VA treatment records associated with the claims file indicated complaints of neck pain and radiating pain in the upper extremities, they are devoid of any indication that the Veteran experienced ankylosis as contemplated by the higher rating criteria under Diagnostic Code 5243. As there is no evidence suggestive of any functional impairment equivocal to unfavorable ankylosis, the Board finds that a higher rating is not available. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). The Veteran is already in receipt of a compensable rating for limitation of motion, her complaints of pain (to include pain management procedures) are fully contemplated by the current rating assigned. See 38 C.F.R. § 4.59. The occurrence of pain is not an additional symptom, but rather the practical effect of the symptoms of pain and limited range of motion that have been clinically observed and measured in the evidence of record. The Board has considered the holding of Sharp v. Shulkin, and observes that a higher rating is not warranted due to the Veteran’s reported flare-ups. 29 Vet. App. 26 (2017). The Veteran reported flare-ups during the January 2012 VA examination as pain with certain activities involving the upper extremities (for example, sitting at a typewriter would cause a flare-up of the neck) and changes in the weather. The rating criteria are clear that no higher rating can be assigned in the absence of unfavorable ankylosis of the entire cervical spine. Furthermore, even though the examiner did not provide range of motion estimates for flare-ups, remanding this claim would provide no additional benefit to the Veteran because there is no indication that functional loss during a flare-up amounted to unfavorable ankylosis of the cervical spine as required for the 40 percent rating under Diagnostic Code 5243. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board has also considered the lay statements in the record regarding the Veteran’s cervical spine disability, however, they do not warrant a higher rating. The Veteran is competent to report her observations, including reports of pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Such statements are consistent with the rating assigned. Pertinently, pain alone is not sufficient to warrant a higher rating; as pain, in itself, does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 40-41 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. The Board considered the DeLuca factors, however, the January 2012 VA examination found no further limitation of motion on repetitive use testing and thus there is no suggestion that there are symptoms akin to ankylosis. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Board is aware that the Veteran indicated in her February 2015 notice of disagreement that she was facing more cervical spine surgery. However, October 2015 VA treatment records indicated that the Veteran was not interested in undergoing further surgery. Based on this, along with other medical evidence in the record, the Board finds there is no evidence supporting that the Veteran had a second cervical spine surgery warranting consideration for this instant appeal. Finally, the Board notes that the Veteran is already in receipt of separate compensable ratings for bilateral upper extremity radiculopathy. This compensates her for her complaints of radicular symptoms. See June 2015 Rating Decision. In May 2016, the Veteran submitted a notice of disagreement to the applicable rating decision, which included contentions regarding neurologic symptoms in the upper extremities, and therefore these issues are not properly before the Board for consideration at this time. The Veteran has elected RAMP review of these claim and the Board finds under this procedural posture that these claims are not for before it. Entitlement to TDIU has previously been denied. Service connection is in effect for multiple disabilities, with a combined current rating of 90 percent. The record does not reflect that the issue of TDIU is raised again as part and parcel of this increased rating claim as the record does not reflect that the cervical spine alone causes unemployability.   In sum, the preponderance of evidence is against a rating in excess of 30 percent for the Veteran’s cervical spine disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel