Citation Nr: 18158866 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-00 301A DATE: December 18, 2018 ORDER The reduction from 20 percent to 10 percent for chronic lumbar strain, effective April 1, 2013 was proper; thus, the Veteran’s appeal of this issue is denied. REMANDED Entitlement to a rating in excess of 10 percent for chronic lumbar strain from April 1, 2013, is remanded. FINDINGS OF FACT 1. In September 2011, the Veteran filed for an increased rating for his service-connected chronic lumbar spine disability. 2. A July 2012 rating decision proposed that the Veteran’s rating for chronic lumbar strain be reduced from 20 percent to 10 percent. 3. The Veteran was notified of the proposed reduction in July 2012 and submitted argument as to the reduction in August 2012, but did not request a personal hearing. 4. The rating reduction was effectuated in a January 2013 rating decision with an effective date of April 1, 2013. 5. At the time of the reduction, the Veteran’s 20 percent rating for chronic lumbar strain had been in effect for less than five years. 6. At the time of the reduction, the evidence reflected that the Veteran was entitled to no more than a 10 percent rating for his service-connected chronic lumbar strain. CONCLUSION OF LAW The reduction from 20 percent rating to 10 percent rating for chronic lumbar strain, effective April 1, 2013, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 2003 to April 2005. The case is on appeal from January 2013 and May 2014 rating decisions. Additional evidence was received subsequent to the statement of the case issued in December 2014. As the evidence relates to symptoms experienced after the rating reduction was effectuated, this evidence is not pertinent to the reduction claim decided herein. Thus, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. The propriety of a reduction from a 20 percent rating to a 10 percent rating for chronic lumbar strain In September 2011, the Veteran filed an increased rating claim of his service-connected chronic lumbar strain. This resulted in the Veteran’s rating being reduced from 20 percent to 10 percent disabling. The Veteran has not claimed any procedural defect in the reduction, and the Board finds none. Rather, the Veteran claims that his chronic lumbar strain has gotten worse, not better. The Veteran in an August 2012 statement noted that he has increased flexibility in his back, but only because of countless hours of stretching, traction, and chiropractic treatment. He noted constant pain and flare-ups of pain, on which he takes pain medication. Specifically, he noted mowing the lawn on a weekend when his back popped causing continuous spasms for the entire weekend. He also notes that back pain prevents him from playing with his young children. The rating reduction became effective April 1, 2013. Thereafter, the Veteran submitted several statements regarding his symptoms. In a May 2014 statement, he stated that his pain at times flares to a 10, which leaves him bed-ridden. He stated that he has back spasms that take his breath away. He noted medication to help him sleep and stop the spasms. Even when his pain is not flaring, his back pain limits his activities at work and home. In a January 2015 statement, the Veteran indicated that he has had to take a desk job because of his back pain. Even with this new assignment, he must take breaks to stretch and walk around. He states that this lowers his productivity and worries about being let go. Again, he noted that his back pain limits his activities at home as well. In an October 2018 informal hearing presentation, the Veteran’s representative argued that the 20 percent rating should be restored. Although the VA examinations of record note no spasms, guarding, or abnormal gait, the representative argued that the Veteran has a painful right leg condition, that pain in a lower extremity usually results in uneven or cautious walking that can aggravated related conditions in the hip or back. Legal Criteria for Reductions A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When an RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c); see also Hedgepath v. Wilkie, No. 17-0794, slip op. at 6-7 (Nov. 7, 2018) (noting that the provisions of 38 C.F.R. § 3.344(a) apply only to ratings in effect for more than five years and discussing actual improvement under the ordinary conditions of life and work for ratings in effect for more than five years); Brown v. Brown, 5 Vet. App. 413, 415-16 (1993) (noting February 28, 1986 as the effective date for the rating at issue which was reduced effective April 1, 1991). In making this determination, 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, 5 Vet. App. at 420. Generally, when reduction in the evaluation of a service-connected disability is contemplated 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 latest address of record of the contemplated action and furnished detailed reasons therefore. The veteran must be allowed an opportunity to participate in a personal hearing, with the request received within 30 days of the notice provided, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e), (i). 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). Legal Criteria for Rating Disabilities Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. However, for reductions, the burden of proof is on the Government. 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 enervation, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Analysis Applicable to this case, spine disabilities are rated under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, which provides for 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 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 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 contour; or vertebral body fracture with loss of 50 percent or more of the height. The Veteran’s 20 percent rating was based on the findings in the June 2009 VA examination report. At that time, the examiner noted one incident of low back pain three months prior that was treated with message, after which the Veteran was able to return to work. The Veteran reported no abnormal gait. Tenderness over the lower lumbar paravertebral musculature was noted. Forward flexion was to 50 degrees, extension was to 10 degrees. The Veteran did not complain of pain on motion, and there was no reduction in range of motion on repetition. Mild paresthesias was noted bilaterally, and the examiner opined that mild radiculopathy was present. Another examination was conducted in October 2009. Range of motion on flexion was to 75 degrees, on extension was to 15 degrees, and for left and right lateral flexion and rotation was to 30 degrees. There was no objective evidence of pain on active range of motion or decrease in range of motion or pain on repetitive range of motion testing. VA treatment records dated in September 2011 show that upon evaluation of the lumbar spine flexion was measured to be approximately 110 degrees, extension was to 25 degrees, right and left lateral flexion was to 25 degrees. Rotation was within normal limits. The Veteran reported some stiffness with range of motion activities. Sensory tests were grossly within normal limits. A September 2011 clinical record noted electrodiagnostic evidence for bilateral meralgia paresthetica (lateral femoral cutaneous mononeuropathy) versus technical difficulty. There was no evidence of lower extremity radiculopathy, mononeuropathy, plexopathy or myopathy. A follow-up EMG was ordered. Further neurology consultation in October 2011 (for the complaints of intermittent numbness in the upper and lower extremities) reflects that the EMG was unremarkable. The notes indicate that an interpretation of the EMG study revealed no evidence of nerve or spinal disease causing nerve problems. The reduction on appeal was based on a November 2011 VA examination. At this November 2011examination, the Veteran reported flare-ups of increased pain, especially at night, causing him to lie on the floor and stretch to improve. However, he stated that he could still conduct his normal routine. He was an engineer and his position was 50/50 sedentary vs physical. Range of motion was to 90 degrees or greater on forward flexion, with evidence of pain at 75 degrees; to 30 degrees on extension; to 25 degrees on right lateral flexion; and to 30 degrees on left lateral flexion and right and left lateral rotation. There was no reduction in range of motion on repetition, but right lateral flexion was to 30 degrees rather than 25 degrees. Functional loss resulting from pain on movement was noted. Tenderness over T-12/L-1 and L-1/L-2 areas was noted. There was no guarding or muscle spasm of the thoracolumbar spine. Straight leg raising tests for radiculopathy were negative. Mild paresthesias in each lower extremity was reported by the Veteran; the examiner noted mild radiculopathy of the femoral nerve bilaterally. However, the examiner further indicated that the September 2011 EMG of the lower extremities was negative for radiculopathy, plexopathy or peripheral polyneuropathy. The EMG showed possible evidence of bilateral meralgia paresthetica - not related to the lumbar spine. Subsequently, the Veteran was afforded another VA examination in April 2014. Range of motion was to 90 degrees on forward flexion, 30 degrees on extension, 20 degrees on right and 25 degrees on left lateral flexion, and 20 degrees on right lateral rotation, and 30 degrees on left lateral rotation. There was no on further reduction in range of motion due to pain or repetition. The examiner noted functional loss was reported from less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. Tenderness was noted from T10-12 and T-12 on palpation. However, muscle spasms and guarding did not result in abnormal gait or abnormal spinal contour. No neurological abnormalities were reported by the Veteran or observed by the examiner. The Board finds that the rating reduction was proper. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. The evidence of record at the time of the reduction showed ranges of motion consistent with a 10 percent rating. Indeed, the September 2011 treatment note showed flexion to 110 degrees. The November 2011 VA examination revealed forward flexion to 90 degrees (which is considered normal) with no additional limitation of motion was observed upon repetitive motion testing. This was also the range of motion noted at the VA examination conducted in 2014 nearly three years later. Even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence does not show that the lumbar spine disability more nearly approximated the criteria for a disability rating in excess of 10 percent at the time of the reduction. It appears the evidence available at the time of the reduction supported the RO’s determination that the lumbar spine disability had improved since the initial June 2009 examination and no longer produced a disability picture resembling that contemplated by a 20 percent rating. Even with a liberal reading of the November 2011 range of motion data and considering the effect of pain and the noted functional impairment, forward flexion was limited only to 90 degrees including upon repetition. This range of motion is far greater than that required for a 20 percent rating. Also, the combined thoracolumbar range of motion was significantly greater than 120 degrees required for a 20 percent rating. The 10 percent rating thus contemplates the functional loss due to pain, less movement, and lack of endurance caused by the lumbar spine disability. There is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness or incoordination. See 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Board is unconvinced by the Veteran’s representative’s argument, made in the November 2018 informal hearing presentation, regarding abnormal gait. Essentially, the representative argues that an unspecified right leg disorder be recognized as causing abnormal gait and that VA compensate for the effects of the right leg disorder. There is no indication that the claimed right leg disorder is radiculopathy. Rather, the right leg disorder is manifested by nonservice-connected symptoms. If the Veteran wishes compensation for a symptomatic right knee disorder, he should file a claim for service connection. Thus, because the November 2011 VA examination disclosed improvement in the Veteran’s chronic lumbar strain, the reduction in the disability rating from 20 percent to 10 percent was proper. 38 C.F.R. § 3.344(c); Hedgepath, supra. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for chronic lumbar strain from April 1, 2013, is remanded. As noted, the Veteran’s claim for an increased rating for his service-connected chronic lumbar strain was received in September 2011. This was answered by a rating decision which effectuated a reduction in his disability evaluation, effective April 1, 2013. The Veteran submitted an additional claim in August 2013 for a disability evaluation in excess of 10 percent, which was adjudicated and denied in a May 2014 rating action. The Veteran submitted a timely NOD to that rating action. A liberal reading of the December 2014 statement of the case reflects consideration of both the propriety of the reduction and entitlement to a higher rating. Therefore, a claim for a rating in excess of 10 percent for chronic lumbar strain from April 1, 2013 is also on appeal. Unlike prior VA examinations, the Veteran’s reports of flare-ups in the April 2014 VA examination were not fully explored. Specifically, the examiner stated that he could not, without resort to mere speculation, opine as to the Veteran’s functional limitations during a flare-up, without observing the Veteran both during a flare-up and not during a flare-up. This is precisely the rationale that the United States Court of Veterans Claims rejected in Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009). Therefore, a remand for a new VA examination and medical opinion that includes commentary on the Veteran’s functional limitations during a flare-up, to include at the time of the April 2014 VA examination, will be requested. The matter is REMANDED for the following action: Afford the Veteran a new VA examination of his chronic lumbar strain. The claims file should be reviewed and all appropriate testing should be conducted. The lumbar spine should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or is not medically appropriate in this case, he or she should clearly explain why that is so. The examiner is asked to express an opinion regarding whether pain, weakness, fatigability, or incoordination cause additional functional impairment of the lumbar spine on repeated use overtime OR during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional loss during such events based on the Veteran’s description of their severity, frequency, duration, and/or functional loss manifestations. Retrospective Opinion: The examination report should include a retrospective medical opinion regarding the functional limitations during flare-ups or after repeated use over time, expressed in terms of reduced range of motion, at the time of the April 2014 VA examination. The examiner is advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George