Citation Nr: 18160066 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-24 339 DATE: December 21, 2018 ORDER The procedural requirements for a reduction of the Veteran’s rating for degenerative changes of the lumbar spine with intervertebral syndrome from 60 percent to 20 percent, effective July 1, 2015, were properly followed. The procedural requirements for a reduction of the Veteran’s rating for radiculopathy of the left lower extremity from 40 percent to 10 percent, effective July 1, 2015, were properly followed. The procedural requirements for a reduction of the Veteran’s rating for radiculopathy of the right lower extremity from 40 percent to 10 percent, effective July 1, 2015, were properly followed. REMANDED Appropriateness of drill pay adjustment for Fiscal Year 2012 is remanded. Appropriateness of drill pay adjustment for Fiscal Year 2013 is remanded. FINDINGS OF FACT 1. In December 2011, the Veteran was afforded a thoracolumbar spine conditions disability benefits questionnaire (DBQ) examination, that also addressed symptoms of bilateral lower extremity radiculopathy. 2. A July 13, 2012 rating determination undertaken pursuant to the Disability Evaluation System (DES) Pilot Program granted service connection for degenerative changes of the lumbar spine with intervertebral disc syndrome (back disability), radiculopathy of the left lower extremity (left lower radiculopathy) and radiculopathy of the right lower extremity (right lower radiculopathy); and assigned temporary evaluations of 60 percent, 40 percent and 40 percent, respectively, effective October 1, 2011. 3. A July 18, 2012 letter informed the Veteran that the RO had requested that future examinations be scheduled for the Veteran’s back, left lower radiculopathy and right lower radiculopathy disabilities on the basis that the Veteran’s most recent medical examination showed the possibility of improvement. The Veteran was told that he would be notified of the date, time and place to report. 4. A “Compensation and Pension Exam Inquiry” form reflects that on July 11, 2013, the RO requested that the Veteran be scheduled for a thoracolumbar spine DBQ examination and a peripheral nerves DBQ examination. 5. A “Compensation and Pension Exam Inquiry” form reflects that DBQ examinations for the thoracolumbar spine and peripheral nerves were cancelled on July 26, 2013, due to the Veteran’s failure to report. 6. An August 2013 rating decision proposed a reduction of the ratings assigned for the Veteran’s back, left lower radiculopathy and right lower radiculopathy disabilities from 60 percent, 40 percent and 40 percent, respectively, to noncompensable ratings. 7. A September 2013 letter notified the Veteran of the proposal to reduce his back, left lower radiculopathy and right lower radiculopathy disability ratings based upon a review of the then-current evidence of record, to include consideration of the lack of evidence resulting from the Veteran’s failure to report for the July 2013 examination. The letter notified the Veteran that he should contact the RO if there was a good reason for his failure to report. 8. An April 2015 rating decision effectuated the proposed reduction of the ratings from 60 percent, 40 percent and 40 percent to noncompensable, respectively, effective July 1, 2015. 9. The 60 percent, 40 percent, and 40 percent disability ratings for the Veteran’s service-connected back, left lower radiculopathy, and right lower radiculopathy disabilities had been in effect for less than five years. 10. In an April 2016 letter, the RO notified the Veteran that it had requested a medical reexamination. After undergoing a thoracolumbar spine examination on April 16, 2016, the Veteran’s noncompensable ratings were increased to 20 percent, 10 percent and 10 percent, respectively, with a retroactive assigned effective date of July 1, 2015. 11. With respect to the assigned disability rating reduction from 60 percent to 20 percent for the Veteran’s back disability, the April 2016 reexamination indicated an improvement in, among other things, the Veteran’s range of motion and decreased periods of incapacitating episodes. 12. With respect to the assigned disability rating reductions of 40 percent to 10 percent for bilateral lower extremity radiculopathy, the April 2016 reexamination indicated improvements, among other things, in muscle strength, reflex and sensory testing. CONCLUSIONS OF LAW 1. The RO complied with the procedural requirements under 38 C.F.R. § 3.105(e) for effectuating rating reductions. 38 C.F.R. § 3.105. 2. The criteria for the restoration of a 60 percent disability rating for degenerative changes of the lumbar spine with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.71a, Diagnostic Code 5243. 3. The criteria for the restoration of 40 percent disability rating for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.124a, Diagnostic Code 8620. 4. The criteria for the restoration of a 40 percent disability rating for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1991 to October 2000, October 2001 to September 2002, August 2008 to February 2009, February 2010 to June 2010; and August 2011 to September 2011. He also performed service with the Air National Guard Reductions In a July 2013 rating determination, the RO granted service connection for a back disability, left lower radiculopathy and right lower radiculopathy and assigned temporary evaluations of 60 percent, 40 percent, and 40 percent (respectively) pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243 and 38 C.F.R. § 4.124a, DC 8620. In an April 2015 rating decision, the RO initially reduced the Veteran’s compensable ratings to noncompensable ratings effective July 1, 2015, based upon evidence in the claims file at that time and the Veteran’s failure to report for a scheduled medical reexamination. However, after the Veteran underwent a reexamination in April 2016, the RO revised its previous rating decision by assigning the Veteran ratings of 20 percent, 10 percent, and 10 percent, respectively, with a retroactive effective date of July 1, 2015. Thus, the actual rating reductions at issue in the case are the propriety of reducing the Veteran’s back disability rating from 60 percent to 20 percent; the Veteran’s left lower radiculopathy disability from 40 percent to 10 percent; and the Veteran’s right lower radiculopathy disability from 40 percent to 10 percent. The Veteran has appealed for restoration. Where a rating has been in effect for less than five years, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. §§ 3.344(a); 3.344(c); 3.343(a). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown v. Brown, 5 Vet. App. 413, 421. Not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Id. Where a reduction in rating a service-connected disability or employability status 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 and setting forth all material facts and reasons must be prepared. The veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof, and given 60 days to present additional evidence to show that compensation payments should be continued at their present level. The veteran must also be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105(e). Appropriateness of Rating Reductions Based in part on a December 2011 medical examination, the Veteran was granted service connection for degenerative changes of the lumbar spine with intervertebral disc syndrome (back disability), radiculopathy of the left lower extremity (left lower radiculopathy) and radiculopathy of the right lower extremity (right lower radiculopathy); and assigned temporary evaluations of 60 percent, 40 percent, and 40 percent, respectively, effective October 1, 2011. In an August 2013 rating decision, the RO issued a rating decision that, among other things, proposed to reduce the Veteran’s service-connected back disability from 60 percent to 20 percent; left lower radiculopathy disability from 40 percent to 10 percent; and right lower radiculopathy disability from 40 percent to 10 percent. A September 2013 letter provided the Veteran with appropriate notice of the proposed reduction. In an April 2015 rating decision, the RO effectuated the proposed reduction, effective from July 1, 2015. Prior to the reduction of his service-connected conditions, the Veteran was scheduled for a VA examination, but failed to report. The RO initially proposed to reduce the Veteran’s disability ratings on the lack of current medical findings in the claims file due to the Veteran’s failure to appear. Subsequently, however, the Veteran was afforded a VA examination in April 2016. A comparison of the December 2011 and April 2016 examination reports reveals: • Back Disability During his December 2011 examination, the Veteran was found to have ranges of motion that were measured as: 35 degrees flexion (normal being to 90); 10 degrees extension (normal being to 30); right side bending to 10 degrees (normal being to 30); left side bending to 15 degrees (normal being to 30); right rotation to 20 degrees (normal being to 30); and left rotation to 20 degrees (normal being to 30). Movements were limited by pain. The Veteran was noted as being unable to perform repetitive-use testing with 3 repetitions because of pain. He ultimately had a combined range of motion of 110 degrees. Physical examination noted tenderness to palpation and questionable abnormal gait. The Veteran described incapacitating episodes related to intervertebral disc syndrome as lasting at least 6 weeks out of the previous 12-month period. During his April 2016 examination, the Veteran could perform repetitive use testing. Ranges of motion after repetitive use testing were measured as: 50 degrees flexion; 10 degrees extension; right side bending to 20 degrees; left side bending to 20 degrees; right rotation to 20 degrees; and left rotation to 20 degrees. Movements were limited by pain. The Veteran complained of constant back pain, but indicated that he did not take any medication. He had a combined range of motion of 140 degrees. Physical examination noted tenderness to palpation and guarding severe enough to cause an abnormal gait. The Veteran denied any periods of incapacitation during the previous 12 months. • Bilateral Lower Extremity Radiculopathy In terms of his bilateral lower extremity radiculopathy, the Veteran was found in December 2011 as having “constant pain” and “intermittent pain” described as moderate in severity. He was noted to have numbness of the bilateral lower extremities, without paresthesias and/or dysesthesias. Muscle strength was intact, with (on a scale from 1-to-5, 1 being the worst and 5 being the best) right lower extremity hip flexion of 5/5, knee extension of 4/5, ankle plantar flexion of 4/5, ankle dorsiflexion of 3/5, and great toe extension of 5/5. For the left lower extremity, the Veteran had hip flexion of 5/5, knee extension of 3/5, ankle plantar flexion of 3/5, ankle dorsiflexion of 2/5, and great toe extension of 2/5. Reflex examination (on a scale of 0 to 4+, with 2+ being normal) for the right knee was 0/4+ and 3/4+ for the right ankle. Left knee was noted as 3/4+ with ankle reflexes of 3/4+. Lastly, the Veteran’s sensory examination for the right and left upper thigh, thigh/knee, lower leg/ankle, and foots/toes were all reported as normal. The April 2016 examination report reveals that the Veteran complained of constant pain of moderate-to-severe severity, and mild tingling in the lower extremities. He reported that he was not currently taking any medication. Physical examination noted an improvement in muscle strength testing, as right lower extremity hip flexion was noted to be of 5/5, knee extension of 5/5, ankle plantar flexion of 5/5, ankle dorsiflexion of 5/5, and great toe extension of 5/5. For the left lower extremity, the Veteran had hip flexion of 4/5, knee extension of 4/5, ankle plantar flexion of 4/5, ankle dorsiflexion of 4/5, and great toe extension of 4/5. Reflex examination revealed improvement in that the Veteran’s right knee was normal with scores of 2/4+ (2+ considered normal) and 2/4+ for the right ankle. Left knee and ankle were also noted to be normal, with scores of 2/4+ and 2/4+. Lastly, the Veteran’s sensory examination for the right and left upper thigh, thigh/knee, lower leg/ankle, and foots/toes were all reported as normal. The Veteran did not have any numbness of the bilateral lower extremities, but had mild paresthesias and/or dysesthesias of the right lower extremity and moderate severity in the left lower extremity. Propriety of Rating Reductions Given the medical evidence elicited in the April 2016 examination and contemporaneous VA treatment records in the claims file, the Board concludes that the April 2016 examination was adequate in terms of it showing improvement consistent with a reduction of the respective 60 percent, 40 percent, and 40 percent ratings under the provisions of 38 C.F.R. § 3.344(c). Procedurally, the Veteran was notified at his address of record in September 2013 of the proposed rating reductions and given the opportunity to present additional evidence. He was also notified that he should contact the RO if he was ready to report for a VA examination. Lastly, he was informed that he could request a hearing. He provided no additional evidence to the RO in response to the September 2013 letter. Thereafter, the RO reduced the Veteran’s rating. For the record, the Board observes that the RO did not actually issue a rating decision reducing the Veteran’s disability ratings until April 2015, approximately 1 year and 7 months after it notified the Veteran of its proposal to reduce. During that time frame, the Veteran continued to receive his respective 60 percent, 40 percent, and 40 percent disability ratings for his service-connected disabilities. In an August 2017 affidavit, the Veteran essentially argues error in that he never received notice of his scheduled July 2013 VA examination or the September 2013 due process notification letter. The Board does not challenge the Veteran’s veracity, the fact of the matter is that all the Veteran’s correspondence has been sent to the same, current address the Veteran has on file with VA. There is no evidence that anything has ever been returned by the U.S. Postal Office to VA. In this regard, evidence in the file reveals that the Veteran has received correspondence and/or other information from VA (sent to his same address) that the Veteran has responded to (i.e., reflecting that he received the documents sent by VA and disagreed with VA’s determinations). The Court has held that “[t]here is a presumption of regularity that public officers perform their duties ‘correctly, fairly, in good faith, and in accordance with law and governing regulations.’” Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)). Courts presume that, “in the absence of clear evidence to the contrary,” public officers have “‘properly discharged their official duties.’” Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The Board cannot find that the Veteran has overcome the presumption of regularity. His affidavit stating that he did not receive notice of his examinations is insufficient to overcome this presumption—namely, because there is clear evidence that his address did not change and he received other correspondence to his address of record. There is no clear evidence showing that the Veteran did not receive notice of his 2013 VA examination. Additionally, the fact that the rating reductions were not effectuated until 2015, almost 2 years after the proposal to reduce, may also be affecting the Veteran’s memory as to letters he received from VA in 2013. Moreover, his reexamination occurring in April 2016 rather than July 2013, and his benefits were not reduced until July 1, 2015 (more than 60 days after issuance of the April 2015 rating decision). During this time, the Veteran continued to receive his respective 60 percent, 40 percent, and 40 percent disability ratings for his back disability and bilateral lower extremities radiculopathy. Further, after the Veteran was examined in April 2016, the RO reevaluated the severity of his disabilities and retroactively increased the reduced noncompensable ratings to the respective 20 percent, 10 percent, and 10 percent ratings now assigned. The Board finds this evidence to be sufficient upon which to adjudicate the Veteran’s claims. Although the Veteran and his representative appear to imply that the Veteran should be afforded a new VA examination, the scheduling of a new examination is unnecessary and would serve no purpose in the evaluation of the Veteran’s reduction claims, because any medical findings would reflect the current status of the Veteran’s disabilities; not the severity of those disabilities between the time frame from 2013 to 2016. If he wishes to file for an increase for these disabilities, he can do so through the proper channels. Based on the foregoing, the Board finds the reductions from 60 percent to 20 percent for the Veteran’s back disability, 40 percent to 10 percent for his left lower radiculopathy, and 40 percent to 10 percent for his right lower radiculopathy were procedurally proper in accordance with the notice provisions under 38 C.F.R. § 3.105 and based on the evidence available at the time; and restoration of the respective 60 percent, 40 percent, and 40 percent ratings is denied. Post-Reduction Disability Ratings • Back Disability Rated as 20 Percent Disabling For the Veteran to receive a rating higher than 20 percent for his service-connected back disability, the evidence would need to show that he has forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Such evidence would warrant the assignment of a 40 percent disability rating pursuant to 38 C.F.R. § 4.71a, DC 5243 pursuant to the General Rating Formula for Diseases and Injuries of the Spine. In the alternative, a 40 percent rating could be assigned based on evidence of incapacitating episodes upon a showing of such episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. As mentioned previously, a review of the Veteran’s April 2016 examination reveals that he had ranges of motion of 50 degrees flexion; 10 degrees extension; right side bending to 20 degrees; left side bending to 20 degrees; right rotation to 20 degrees; and left rotation to 20 degrees. The Veteran had a combined range of motion of 140 degrees. Clearly these measurements do not meet the criteria necessary for the assignment of a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Even though the examiner was unable to determine what the ranges of motion would be with after repeated use over time or during flare ups, the Board finds it improbable that either fatigue or flare-ups would result in the Veteran losing 20 degrees of forward flexion or result in limitations akin to having favorable ankylosis of the entire thoracolumbar spine. The Veteran is also not entitled to the assignment of a 40 percent rating based upon evidence of incapacitating episodes because he denied periods of incapacitation during the prior 12 months. Thus, the current medical evidence of record reflects that the assignment of a disability rating higher than 20 percent for the Veteran’s back disability is simply not warranted. To the extent that the Veteran asserts in an August 2017 affidavit that his back symptomatology has remained the same since his retirement in 2012, implying that his disability had not improved, the more persuasive and credible evidence refutes his contentions as his April 2016 examination reflects improvement. The Veteran may feel that his back disability is the same as it has always been; however, he has not been shown to have the training or expertise to provide a competent medical opinion as to the severity of his service-connected disability. To the extent that he relies on the May 2015 three-sentence statement provided by C.C., NP in which she states that the Veteran experienced chronic back pain with radiation into the lower extremities that was unlikely to improve, the letter does not contain any rationale for her opinion or set forth objective medical examination data upon which to evaluate the statement. Because of this, the Board finds C.C., N.P.’s statement to be of little probative value in the analysis of the Veteran’s claims. • Bilateral Lower Extremity Radiculopathy, Rated Separately as 10 Percent Disabling For the Veteran to receive separate ratings higher than 10 percent for his bilateral lower extremity radiculopathy, the evidence would need to show that he suffers from incomplete paralysis of the sciatic nerve that was determined to be moderate in severity. Such evidence would warrant the assignment of a 20 percent rating. As set forth in the discussion above, physical examination of the Veteran’s lower extremities in April 2016 revealed muscle strength, sensation and reflexes in the right lower extremity and intact reflexes and sensation in the left lower extremity, but with a slight decrease in muscle strength in that leg. Based upon these findings, the assignment of a 20 percent disability rating is not appropriate. Therefore, based upon a thorough review of all evidence of record, the Board finds that the rating reductions related to the Veteran’s service-connected back, left lower radiculopathy and right lower radiculopathy disabilities were proper; and the assignment of 20 percent, 10 percent, and 10 percent ratings (respectively) are appropriate. REASONS FOR REMAND Drill Pay Adjustments for Fiscal Years 2012 and 2013 are Remanded. The RO was notified by the Defense Manpower Data Center that the Veteran received drill pay for 185 days during Fiscal Year 2012 (October 1, 2011, to September 30, 2012) and 88 days during Fiscal Year 2013 (October 1, 2012, to September 30, 2013). Federal law prohibits receiving drill pay and VA compensation benefits simultaneously, so the RO made an adjustment to the Veteran’s compensation payments to recoup the alleged overpayment. However, a review of the evidence reveals that the Veteran has consistently submitted statements in which he asserts that he retired on December 28, 2012; and therefore, did not perform any drills during the alleged time periods. He also submitted paperwork from his National Guard Unit in an attempt to resolve this matter; however, the evidence provided appears to have covered the 2012 and 2013 Calendar Years rather than Fiscal Years. In response to the Veteran’s assertions, the RO informed the Veteran that he should contact either the Defense Manpower Data Center or his Former Air National Guard unit for evidence rebutting the information provided to VA. The Board finds that VA should assist the Veteran in his efforts show that he did not receive drill pay during Fiscal Years 2012 and 2013. The Board finds it odd that the Defense Manpower Data Center has indicated the Veteran had 88 drill days for FY 2013. If the Veteran retired on December 28, 2012, he would have needed to complete 88 days of drills between October 1, 2012, and December 28, 2012. Daily drilling for almost 3 months prior to one’s retirement seems unlikely to the Board. Given the questionable inaccuracy of the number of drill days reported for Fiscal Year 2013 and the need to remand that claim for clarification, the Board finds that in an abundance of caution, the issue of accuracy of the number of drill days for Fiscal Year 2012 should also be reviewed. The matters are REMANDED for the following actions: (a.) The RO should confirm that the Veteran retired from the Air Force and the Air National Guard on December 28, 2012, as reported by the Veteran. (b.) Once the Veteran’s retirement date is confirmed, the RO should notify the appropriate agency (including the Defense Manpower Data Center if appropriate) of the Veteran’s retirement date, and request that an audit for drill pay for Fiscal Year 2012 and Fiscal Year 2013 be undertaken to ensure accuracy of the data being supplied. (c.) In an abundance of caution, the RO should also request records from the Air National Guard that document the days that the Veteran participated in drill activities wherein he was entitled to drill pay. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Talpins, Patricia