Citation Nr: 18159371 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-58 767A DATE: December 19, 2018 ORDER The reduction of the rating for degenerative disc disease (DDD) of the lumbar spine with scoliosis (low back disability) from 40 to 20 percent, effective November 1, 2014, was not proper; the 40 percent rating is restored. Entitlement to an increased rating in excess of 40 percent for the low back disability is denied. Entitlement to an increased rating in excess of 20 percent for radiculopathy, right lower extremity associated with lumbar DDD, is denied. FINDINGS OF FACT 1. A November 2016 rating decision reduced the low back disability rating from 40 to 20 percent, effective November 1, 2014; the 40 percent rating was in effect for less than five years; the reduction was based on an inadequate VA examination and there is post-reduction evidence favorable to restoring the rating. 2. The Veteran’s low back disability is not manifested by ankylosis or incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician. 3. The Veteran’s radiculopathy of the right lower extremity does not more nearly approximate moderately-severe incomplete paralysis of the lower sciatic nerve. CONCLUSIONS OF LAW 1. Because it was based on an inadequate examination, the low back disability rating reduction from 40 percent to 20 percent was not valid; restoration of the 40 percent rating is warranted, effective November 1, 2014. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.41a, Diagnostic Code 5243. 2. The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. The criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity, affecting the sciatic nerve, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to November 1998 and April 26, 2002 to May 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Rating Reduction and Increased Rating (Back) 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 a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344 (a). They provide that rating agencies will handle cases affected by changes 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 less full and complete than those on which payments were authorized or continued will not be used as a basis of 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)). However, the provisions of 38 C.F.R. § 3.344 (c) specify that the above 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. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344 (c). Under 38 C.F.R. § 3.105 (e), when a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award 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 action expires. 38 C.F.R. § 3.105 (e). In addition, rating reductions must be based on improvements in a disability that reflect an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420 (1993). A rating reduction also must be based on adequate examinations and opinions. Tucker v. Derwinski, 2 Vet. App. 201 (1992). In this case, the Veteran was initially awarded service connection for degenerative disc disease of the spine as 40 percent disabling from November 1, 2010, and reduced to 20 percent disabling from November 1, 2014. Pursuant to the Veteran’s claim for an increased rating, the Veteran had a VA examination for back conditions in July 2014. Based on this examination, the Veteran’s compensable evaluation was reduced from 40 percent to 20 percent. In an August 2014 rating decision, the RO explained that a reduced evaluation was warranted as the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees and intervertebral disc syndrome with no incapacitating episodes during the past 12 months. The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or does not show, as to the claim. 1. The reduction of the rating for degenerative disc disease of the lumbar spine with scoliosis (low back disability) from 40 to 20 percent, effective November 4, 2016, was not proper. The rating decision dated in June 2013 proposed to reduce the Veteran’s service connected lumbar degenerative disc disease with scoliosis from 40 percent disabling to 20 percent disabling based on the VA examination results from May 2013. The predetermination letter, in June 2013 notified the Veteran of the proposed decision and gave her 60 days to respond if he had any additional evidence to submit. The 40 percent rating in question had not been in effect for 5 years at the time of the reduction because it was only in effect from November 1, 2010 until the reduction to a 20 percent rating was effectuated on November 1, 2014. Therefore, the provisions of 38 C.F.R. § 3.344(a) are inapplicable. See Brown, 5 Vet. App. at 418 (finding that duration of rating is measured from effective date of actual reduction). Nevertheless, the Court noted in Brown that there are several general VA regulations (38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13) that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown, 5 Vet. App. at 420-21. The U.S. Court of Appeals for Veterans Claims (Court) recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Thus, the Court clarified the requirements that must be met with respect to orthopedic disability examinations prior to the Board finding that an examination report includes adequate evidence to adjudicate the claim. Id. The Veteran’s VA examination was inadequate because it did not include range of motion testing of the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. Moreover, thereafter, the Veteran required surgery for which she received a temporary total evaluation from March 7, 2016 to June 30, 2016. Pertinent post-reduction evidence favorable to restoring the rating must also be considered. See Dofflemeyer v. Derwinski, 1 Vet. App. 589, 594 (1991). Thus, the medical evidence of record is not sufficient to support the reduction in the Veteran’s disability rating from 40 to 20 percent for her service-connected lumbar spine disability. After considering the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Veteran’s service-connected degenerative disc disease of the lumbar spine from 40 percent to 20 percent was improper and, therefore, the reduction not valid. Accordingly, the restoration of a 40 percent rating is warranted, effective November 1, 2014. Additionally, a review of the medical records and VA examination reports show that a rating in excess of 40 percent is not warranted. The Veteran is receiving the maximum rating for limitation of motion of the lumbar spine. Where the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran’s low back disability is not manifested by ankylosis or incapacitating episodes that require bed rest prescribed by a physician and treatment by a physician. Thus, a higher rating is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. INCREASED RATING (RADICULOPATHY) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a rating in excess of 20 percent disabling for radiculopathy, right lower extremity associated with lumbar degenerative disc disease with scoliosis is denied. The Veteran’s radiculopathy of the right lower extremity is rated as 20 percent disabling under Diagnostic Codes 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. VA back examination reports in May 2013 noted the Veteran had moderate paresthesias/dysesthesias and numbness in the right lower extremity, and a positive leg raising test. The examination report further noted the Veteran had mild radiculopathy involving the sciatic nerve. A July 2014 VA back examination report noted the Veteran had mild intermittent pain and moderate paresthesias/dysesthesias and numbness in the right lower extremity. The examination report further noted the Veteran had moderate radiculopathy involving the sciatic nerve. A December 2017 VA back examination report noted the Veteran had mild intermittent pain, paresthesias/dysesthesias, and numbness in the right lower extremity. The examination report further noted the Veteran had mild radiculopathy involving the sciatic nerve. A March 2018 VA back examination report noted the Veteran had no radicular pain or any other symptoms due to radiculopathy. The Veteran had negative straight leg raising test for the right leg, sensory testing was normal and muscle strength testing was normal. An April 2018 VA nerves examination report noted the Veteran had no radicular pain or any other symptoms due to radiculopathy. The Veteran had negative straight leg raising test for the right leg, sensory testing was normal and muscle strength testing was normal. The Veteran reported intermittent off and on mild 'tingly feel', which she called numbness, in the L5 dermatome, right. The Veteran’s gait was normal. The examination report further noted the Veteran’s right sciatic nerve was normal. The Veteran is currently in receipt of a 20 percent disability for the radiculopathy affecting the sciatic nerve for the right lower extremity. The objective clinical evidence reflects that at the most, the Veteran’s radiculopathy affecting the sciatic nerve has manifested mild to moderate incomplete paralysis of the sciatic nerve. As such, a disability rating in excess of 20 percent for right lower extremity radiculopathy is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against assigning a rating greater than currently in effect for the Veteran’s radiculopathy, the doctrine is not for application. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel