Citation Nr: 18161137 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-61 346 DATE: December 28, 2018 ORDER An increased rating of 30 percent, but no higher, for a bilateral foot disability is granted. A restoration of a 20 percent rating for a back disability effective January 8, 2013 is granted. REMANDED An increased rating in excess of 10 percent for a back disability is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s foot disability is manifested by tenderness of the plantar surfaces of the feet and pain on manipulation, not improved by orthopedic shoes or appliances bilaterally. 2. Since January 8, 2013, the most probative evidence of record shows the Veteran’s back disability has not undergone a material improvement under the ordinary conditions of daily life and work. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for a bilateral foot disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.104, Diagnostic Code (DC) 5276. 2. The criteria for restoration of a 20 percent rating for a back disability effective January 8, 2013 have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.105, 4.1. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1998 to April 2004. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran contends his bilateral flatfoot is worse than indicated by his 10 percent rating. The Veteran’s bilateral flatfoot is rated under DC 5276. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. The Veteran has said his feet cause him pain and burn if he stands for too long. Additionally, the Veteran has said he cannot stand for more than ten minutes or walk longer distances. (See March 2013 statement.) The Veteran was afforded an examination for his bilateral foot disability in September 2012. The examiner noted the Veteran’s diagnosis of bilateral flat foot. The examiner noted the Veteran had pain on use of both feet and pain on manipulation of both feet. The Veteran also had swelling, characteristic calluses, and extreme tenderness bilaterally. The examiner reported the Veteran’s symptoms were not relieved by arch supports or orthotics. The Veteran did not have marked deformity, marked pronation, and there was no problem with weight-bearing shifting, lower extremity deformity, inward bowing of the Achilles, or marked inward displacement of the Achilles tendon. The Veteran did not report using any assistive devices. The Veteran was afforded another examination for his bilateral foot disability in January 2013. The examiner noted the Veteran had pain in both feet and pain on manipulation but did not have swelling, calluses, extreme tenderness, or alignment problems. The examiner did report the Veteran’s symptoms were not relieved by arch supports. The examiner also noted the Veteran had degenerative joint disease in his left foot. After reviewing the evidence of record, the Board finds a 30 percent rating for the Veteran’s bilateral foot disability is warranted. The September 2012 and January 2013 examiners both found the Veteran had bilateral pain on manipulation and his symptoms were not relieved by using arch supports or orthotics. Additionally, the September 2012 examiner found the Veteran suffered from bilateral foot swelling, tenderness, and characteristic calluses. Therefore, a 30 percent rating is warranted. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon on manipulation, that is not improved by orthopedic shoes or appliances, is simply not indicated in this case (the Veteran’s own statements would not support this). Therefore, a 50 percent rating is clearly not warranted. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Reduction of Back Rating The Veteran contends the reduction of his back disability rating from 20 percent to 10 percent was improper. In this regard, an October 2008 rating decision granted the Veteran’s service-connected back disability a 20 percent disability rating effective April 8, 2008. A subsequent March 2013 rating decision reduced the rating for the Veteran’s back disability to 10 percent effective January 8, 2013. The reduction was based on the results of a VA examination in January 2013. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the veteran’s condition). Specifically, where a reduction in the evaluation of a service-connected disability or employability status is considered warranted, and the reduction would result in the 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 must be notified at his or her last address of record of the action contemplated and furnished detailed reasons therefore and must be given 60 days for the presentation of new evidence to show that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). However, 38 C.F.R. § 3.105(e) does not apply if the rating reduction does not reduce the veteran’s net compensation. See VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply); Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days’ notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). The March 2013 rating decision that reduced to 10 percent the rating for the Veteran’s back disability also granted the Veteran service connection for several other disabilities, including right lower extremity radiculopathy granted as 20 percent disabling and tinnitus granted as 10 percent disabling. Accordingly, the rating decision did not reduce the Veteran’s total compensation. Consequently, the Board finds that the RO did not have to follow the notice procedures required under 38 C.F.R. § 3.105(e). Having decided that the RO did not need to follow the 38 C.F.R. § 3.105(e) process to reduce the Veteran’s rating, the next question to be addressed is whether, given the available evidence, a reduction to a 10 percent rate was warranted. In this regard, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Brown v. Brown, 5 Vet. App. 413, 421; Also see Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (“Thus, it is well established in the Court’s case law that VA cannot reduce a veteran’s disability evaluation without first finding, inter alia, that the veteran’s service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work.”); Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. “[T]he Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green v. Nicholson, 21 Vet. App. 512 (2006). Under DC 5237, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Veteran’s rating for his back disability was increased to 20 percent effective April 8, 2008 in an October 2008 rating decision. The RO based this decision on a June 2008 examination where the Veteran demonstrated forward flexion of his thoracolumbar spine greater than 30 degrees but no greater than 60 degrees. The RO also noted the Veteran had constant back pain and wore a back brace. The examination also showed the Veteran could walk without specific limitations and the Veteran was able to perform all activities of daily living. The Veteran’s 20 percent rating was continued in a March 2010 rating decision. Here, the Veteran continued to report low back pain. Additionally, the Veteran reported he was unable to lift more than ten pounds, walk, or sit more than ten to 20 minutes at a time. A recent examiner found the Veteran’s forward flexion to be to 50 degrees with pain. The Veteran had an examination for his back in September 2012. The examiner noted the Veteran’s lumbar strain and noted the Veteran had flare ups of his condition. Initial forward flexion ended at 45 degrees. The examiner noted there was no objective evidence of painful motion. The Veteran could perform repetitive use motion and forward flexion ended at 45 degrees. The Veteran did not have muscle spasms or guarding, but did have functional loss due to lumbar spine in the form of less movement than normal. The Veteran had another examination for his back disability in January 2013. Here, the examiner noted the Veteran’s forward flexion both before and after repetitive use testing was to 75 degrees. The examiner also found the Veteran had guarding and muscle spasms but did not result in abnormal gait or spinal contour. The examiner noted the Veteran had intervertebral disc syndrome (IVDS) but with no incapacitating episodes on the past 12 months. In its March 2013 rating decision reducing the Veteran’s back disability rating from 20 to 10 percent, the RO did not appear to consider the Veteran’s September 2012 back examination as it is not listed as part of the evidence considered, nor was it mentioned in their reasons for the decision. The Board finds this significant because this examination was performed just months before the January 2013 examination and shows the Veteran’s forward flexion was only to 45 degrees., which warrants a 20 percent disability rating under DC 5237. Additionally, in both examinations, the Veteran continued to exhibit similar symptomatology, including constant back pain that prevented him from standing or walking comfortably. In light of the above, the Board finds the evidence of record does not show that the Veteran’s service-connected back disability had improved to the point that he was better able to function under the ordinary conditions of life and work at the time of the rating reduction. See Murphy, supra; Faust, supra; Owens, supra. Accordingly, the Board finds that the reduction was improper and the 20 percent ratings for his coronary artery disease must be restored effective the date of reduction, January 8, 2013. REASONS FOR REMAND The Board finds a remand is necessary for the Veteran’s claim of an increased rating of a back disability and his claim for a TDIU. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59 (2017). The final sentence of section 38 C.F.R. § 4.59 (2017) directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Additionally, a recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The Veteran most recently had an examination for his back disability in January 2013. The Veteran reported flare ups of his back disability, but range of motion degrees were not given. The Veteran’s back was not tested on both active and passive motion and no ranges of motion were offered for his testing on weight-bearing and non-weight-bearing. Because the examiner for the Veteran’s back disability did not offer opinions consistent with Correia or Sharp, the examination is inadequate and a new examination is required. The Veteran also contends he is unemployable as a result of his service-connected disabilities. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2017). The Veteran currently does not meet the requirements for a TDIU. However, based on the restoration of the Veteran’s 20 percent rating for his back and as the Veteran’s back disability rating could potentially be increased based on a new examination, the Board finds the question of entitlement to a TDIU must be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. If possible, the Veteran herself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination for his back disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. (a) The Veteran’s back should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (b) The examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, s/he should state whether all procurable medical evidence has been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should provide a complete rationale for any opinion provided. 3. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal, including the Veteran’s claim for a TDIU, based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel