Citation Nr: 18119751 Decision Date: 07/19/18 Archive Date: 07/19/18 DOCKET NO. 15-02 398 DATE: July 19, 2018 ORDER Entitlement to service connection for degenerative arthritis of the spine and lumbar disc disease status post lumbar decompression surgery is granted. Entitlement to service connection for a left shoulder condition is denied. The reduction in rating for the Veteran’s cervical degenerative joint disease status post spine fusion from 20 percent to 10 percent was not proper, and the 20 percent rating is restored effective March 7, 2015 is granted. The reduction in rating for the Veteran’s bilateral pes planus with plantar fasciitis from 50 percent to 30 percent was not proper, and the 50 percent rating is restored effective March 7, 2015 is granted. Prior to July 14, 2014, entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. Since July 14, 2014, entitlement to a TDIU is dismissed as a matter of law. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the spine and lumbar disc disease status post lumbar decompression surgery was onset in service. 2. The competent and probative evidence of record demonstrates that the Veteran’s left shoulder conditions were not caused or aggravated by his service or a by a service-connected disability. 3. A March 2015 rating decision reduced the evaluation for the Veteran’s cervical degenerative joint disease status post spine fusion from 20 percent to 10 percent effective March 7, 2015, after meeting all due process requirements in executing such a reduction. 4. At the time the reduction in the disability evaluation was effectuated, the Veteran’s cervical degenerative joint disease status post spine fusion did not show actual improvement under the normal circumstances of life and work. 5. A March 2015 rating decision reduced the evaluation for the Veteran’s bilateral pes planus with plantar fasciitis from 50 percent to 30 percent effective March 7, 2015, after meeting all due process requirements in executing such a reduction. 6. At the time the reduction in the disability evaluation was effectuated, the Veteran’s bilateral pes planus with plantar fasciitis did not show actual improvement under the normal circumstances of life and work. 7. Prior to July 14, 2014, it is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. 8. Since July 14, 2014, the Veteran is in receipt of a combined, 100 percent schedular rating for the entire period in which he is seeking entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the spine and lumbar disc disease status post lumbar decompression surgery have been met. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left shoulder condition is denied. 38 U.S.C. §§ 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The reduction of the disability evaluation for the Veteran’s cervical degenerative joint disease status post spine fusion from 20 percent to 10 percent was not proper, and the 20 percent disability evaluation is restored from March 7, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5237. 4. The reduction of the disability evaluation for the Veteran’s service-connected Veteran’s bilateral pes planus with plantar fasciitis from 50 percent to 30 percent was not proper, and the 50 percent disability evaluation is restored from March 7, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5276. 5. Prior to July 14, 2014, the criteria for entitlement TDIU due to the Veteran’s service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. 6. Since July 14, 2014, the issue of entitlement to a TDIU is moot as a matter of law. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1976 to March 1977 and December 1978 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and March 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in July 2017. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 1. Entitlement to service connection for degenerative arthritis of the spine and lumbar disc disease status post lumbar decompression surgery is granted. The Veteran testified that he injured his low back while digging a foxhole out in the field during service and he continued to have problems after service, even before his additional on the job injury to his back. The service treatment records show that the Veteran suffered a muscle strain in his low back after digging a foxhole and lifting during service in March 1979 and back pain continued through April 1979. His April 1980 report of medical history at exit from service notes recurrent back pain. The Veteran has current diagnoses of degenerative arthritis of the spine and lumbar disc disease status post lumbar decompression surgery. See September 2016 VA examination. The Board acknowledges that the Veteran suffered additional injuries to his back after service and the August 2013 and September 2016 VA examiner provided negative nexus opinions. See December 1989 private treatment records; August 2013 VA examination report; September 2016 VA examination report. However, a private treating physician, Dr. Cable, noted the Veteran had multiple injuries while in the military and that his back problems are multifactorial, including his previous injuries while in the military. See June 2016 opinion from Dr. Cable. Further, the Board finds the report of the Veteran regarding the onset of his back pain and its continuation since service to be competent and credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds that service connection for degenerative arthritis of the spine and lumbar disc disease status post lumbar decompression surgery is warranted. 38 C.F.R. § 3.303(a); see Flynn v. Brown, 6 Vet. App. 500, 503 (1994). 2. Entitlement to service connection for a left shoulder condition is denied. The Veteran testified that his left shoulder condition is related to his service-connected neck condition, and that he’s had left shoulder symptoms, including weakness and severe pain since service. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The service treatment records show no diagnosis of or treatment for a shoulder condition. The medical evidence shows shoulder pain as early as 1988. See November 1989 private neurosurgical summary from Dr. Hirshberg. The medical records also show neck pain radiating to the bilateral shoulders with constant numbness in digits three, four, and five in March 2004 and left shoulder girdle pain in November 2004. See private treatment records from Texas Back Institute. The Veteran was involved in a motor vehicle accident in May 2010, which caused shoulder pain, and he underwent a rotator cuff repair in 2011. He was also diagnosed with severe arthritis in the left shoulder. See May 2010 VA treatment records; February 2011 private MRI; March through November 2011 private treatment records from Dr. Hayden; January 2015 VA treatment record; December 2015 private treatment at Texas Back Institute. The September 2016 VA examiner diagnosed left shoulder impingement syndrome, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis. At the examination, the Veteran reported that he started to have left shoulder pain in approximately 1975 while digging a foxhole while stationed at Fort Lewis. He recalled no specific injury, but reported that he was seen at Fort Lewis and told he had a strain and given muscle relaxers and therapy. He reported that the treatment did not provide relief, and that he sought further care, but basically dealt with it on his own. The examiner determined that Veteran’s left shoulder condition was not related to service, secondary to the Veteran’s service-connected neck condition, or aggravated by the Veteran’s service-connected neck condition. The Board notes that service connection is in effect for left upper extremity radiculopathy as secondary to his service-connected cervical degenerative joint disease status post spine fusion. To the extent that the Veteran experiences radiating pain, paresthesias and/or dysesthesias, and numbness of the left upper extremity, this is duplicative of symptoms contemplated in the schedular evaluation of left upper extremity radiculopathy and a separate grant of service connection would constitute impermissible pyramiding under 38 C.F.R. § 4.14. See August 2013 VA cervical spine examination. Further, although the Veteran contends that his left shoulder disabilities are related to his service or a service-connected disability, the Board finds that the question regarding the potential relationship between the Veteran’s left shoulder disability and his service and/or service-connected disabilities to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute his disability to his military service or a service-connected disability. Therefore, the Veteran’s contention that he has a left shoulder disability which is related to service and/or a service-connected disability is not competent and therefore not probative. As the most probative evidence of record shows that the Veteran’s left shoulder disability is not related to service or a service-connected disability, the preponderance of the evidence is against the claim, and service connection is denied. Reductions 3. The reduction in rating for the Veteran’s cervical degenerative joint disease status post spine fusion from 20 percent to 10 percent effective was not proper, and the 20 percent rating is restored effective March 7, 2015. The Veteran contends that the reduction in rating for his cervical degenerative joint disease status post spine fusion was not proper because the VA examination upon which the reduction was based was inadequate as it was too short, and his cervical degenerative joint disease status post spine fusion symptoms have worsened since the initial grant of a 20 percent evaluation. At the time the March 2015 rating decision was issued, the reduction from 20 percent to 10 percent for cervical degenerative joint disease status post spine fusion did not reduce the Veteran’s overall disability rating. Therefore, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). Nevertheless, the Board finds that the reduction was not proper. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). 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 that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The Veteran’s cervical degenerative joint disease status post spine fusion is rated under 38 C.F.R. § 4.71a, 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; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. Unfavorable ankylosis of the entire cervical spine warrants a 40 percent rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The previously assigned 20 percent evaluation was awarded by a September 2013 rating decision, which was based on an August 2013 VA examination. The August 2013 VA examination showed forward flexion of 25 degrees with daily flare-ups including weakness, pain, and limited range of motion. The examiner noted the functional impact of the Veteran’s cervical spine disability was that he was only able to lift five pounds, walk one block at one time, walk 15 minutes in an eight hour day, and sit or stand for 10 minutes at one time and total in an eight hour day. The reduction was based upon a March 2015 VA examination. The VA examination report showed forward flexion of 35 degrees, the combined range of motion of the cervical spine 240 degrees. He had less movement than normal and pain on movement after repetitive use. The Veteran did not report flare-ups, and did not have guarding or muscle spasm on examination. The examiner noted his functional limitations included limiting lifting to 10 pounds infrequently, and his walking, sitting, and standing were unlimited. Subsequent VA treatment records continue to show pain and range of motion impaired at the end ranges, which impacts the Veteran’s ability to read and drive. See VA treatment records from June 2015 through August 2016; December 2015 private treatment record from Dr. Cable. The Board finds that the evidence does not show actual improvement under the normal circumstances of life and work. The Board acknowledges that the RO may be correct in finding that the current severity of the Veteran’s cervical degenerative joint disease status post spine fusion does not meet the rating criteria for a 20 percent evaluation under 38 C.F.R. § 4.71a, DC 5237. However, the Veteran remains unemployed and continues to experience neck pain and limitation of motion. The Veteran does not bear the responsibility to demonstrate entitlement to retention of the higher evaluation. Brown, 5 Vet. App. at 418. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). Accordingly, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s cervical degenerative joint disease status post spine fusion under the ordinary conditions of life and work. As such, the 20 percent rating cervical degenerative joint disease status post spine fusion is restored effective March 7, 2015. 4. The reduction in rating for the Veteran’s bilateral pes planus with plantar fasciitis from 50 percent to 30 percent was not proper, and the 50 percent rating is restored effective March 7, 2015. The Veteran contends that the reduction in rating for his bilateral pes planus with plantar fasciitis was not proper because the rating decision code sheet notes that this is a static disability, that the VA examination upon which the reduction was based was inadequate as the examiner did not note that he wore foot braces, and that his symptoms have worsened. As the March 2015 reduction from 50 percent to 30 percent did not reduce the Veteran’s overall disability rating the due process protections of 38 C.F.R. § 3.105(e) do not apply. Nevertheless, the Board finds the reduction was not proper. The Veteran’s bilateral pes planus with plantar fasciitis is evaluated under 38 C.F.R. § 4.71a, DC 5276. Pursuant to Diagnostic Code 5276, a noncompensable rating is warranted for mild symptoms that are relieved by a built-up shoe or arch support. A 10 percent rating is warranted for moderate symptoms, with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet, bilateral or unilateral. A 30 percent rating (20 percent if unilateral) is warranted for severe symptoms, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities, bilateral. A 50 percent rating (30 percent if unilateral) is warranted for pronounced symptoms, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances, bilateral. See 38 C.F.R. § 4.71a, DC 5276. In a June 2014 rating decision, the RO increased the Veteran’s disability evaluation for bilateral pes planus with plantar fasciitis from noncompensable to 50 percent disabling effective September 25, 2013. At the April 2014 VA examination, the Veteran reported that he wore braces for flat feet which did not help the pain. In regard to both feet, the examination showed pain with use, accentuated on use; pain with manipulation, accentuated on manipulation; symptoms not relieved by arch supports; and extreme tenderness of the plantar surface. In regard to both feet, the examiner noted decreased longitudinal arch height on weight-bearing; objective evidence of marked deformity; marked pronation, which was improved by orthopedic shoes or appliances; and the weight-bearing line did not fall over or medial to the great toe. The examination also showed inward bowing of the Achilles tendon (i.e. hind foot valgus, with lateral deviation of the heel) of both feet. The examiner determined the Veteran was limited to lifting 15 pounds, walking two to three blocks at a time, walking one-quarter mile during an eight hour day, sitting for 30 minutes at a time, standing for 30 minutes at a time, sitting for two hours in an eight hour work day, and standing for two hours in an eight hour work day. The Veteran reported flare-ups which caused pain, lasting four hours at a time, five to six times per week, during which he had to sit or lay down. The reduction was based upon a March 2015 VA examination. The March 2015 VA examination report noted the Veteran’s condition has progressively worsened over time and he uses an ankle/foot brace for support. The examiner noted that the Veteran was unable to walk or stand for prolonged periods of time. In regard to both feet, the examination showed pain on use and manipulation, accentuated on manipulation; and no extreme tenderness of the plantar surfaces of the feet. There was decreased longitudinal arch height on weight-bearing and objective evidence of marked deformity, but no marked pronation and the weight-bearing line did not fall over or medial to the great toe. The examiner noted there was a lower extremity deformity other than pes planus causing alteration of the weight-bearing line of both feet, which was hallux valgus. There was no inward bowing of the Achilles tendon (i.e. hind foot valgus, with lateral deviation of the heel) and no inward displacement and severe spasm of the Achilles tendon. Mild to moderate symptoms of hallux valgus were shown. The examination showed pain on movement, pain with weight-bearing, disturbance of locomotion, and interference with standing. The examiner noted flare-ups when the foot is repeatedly used over time causing interference with standing. VA treatment records from October 2013 through February 2015 are consistent in showing +5 midstance pronation. In January and February 2016 VA treatment records, the Veteran reported increased right foot pain. The Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s bilateral pes planus with plantar fasciitis under the ordinary conditions of life and work as the medical evidence continues to show pain, pronation, and inability to stand or walk for a prolonged period. The Veteran does not bear the responsibility to demonstrate entitlement to retention of the higher evaluation. See Brown, 5 Vet. App. at 420; Kitchens, 7 Vet. App. at 320. Accordingly, the reduction of the Veteran’s evaluation for bilateral pes planus with plantar fasciitis from 50 percent to 30 percent was not proper, and the 50 percent rating is restored effective March 7, 2015. TDIU 5. Prior to July 14, 2014, entitlement to TDIU due to service-connected disabilities is granted. The Veteran contends that he is unable to work due to his service-connected disabilities. See July 2014 statement in support of claim; July 2014 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. His Application for Increased Compensation Based on Unemployability shows he last worked full time in 2009 as a lineman. The Veteran testified that he stopped working due to feet, ankles, knees, and back conditions, his work as a lineman was physically demanding, and his entire work history involved work as a lineman. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected disabilities consist of the following: bilateral pes planus rated noncompensable from December 2, 2011 and 50 percent disabling from September 25, 2013; left upper extremity radiculopathy associated with cervical degenerative joint disease status post spine fusion rated 20 percent disabling from December 2, 2011; right upper extremity radiculopathy associated with cervical degenerative joint disease status post spine fusion rated 20 percent disabling from December 2, 2011; left wrist tenosynovitis rated 10 percent disabling from December 2, 2011; left ankle sprain rated 10 percent disabling from December 2, 2011; right ankle sprain rated 10 percent disabling from December 2, 2011; patellar subluxation of the left knee associated with left ankle sprain with instability rated 10 percent disabling from September 25, 2013; patellar subluxation of the right knee associated with right ankle sprain with instability rated 10 percent disabling from September 25, 2013; cervical degenerative joint disease status post spine fusion rated 20 percent disabling from December 2, 2011 and 10 percent disabling from March 7, 2015; cervical spine scar associated with cervical degenerative joint disease status post spine fusion rated noncompensable from December 2, 2011; and newly service connected degenerative arthritis of the spine and lumbar disc disease status post lumbar decompression surgery. Thus, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). The Veteran’s bilateral pes planus, back disability, cervical spine disability, bilateral ankle disabilities, and bilateral wrist disabilities severely limit his ability to lift over five pounds, walk, sit, stand, repetitively bend, stoop, and climb. See August 2013, March 2015, and September 2016 VA examinations. As the Veteran’s entire work history includes physically demanding work as a lineman, the Board has determined that these functional limitations impact his ability to maintain employment. The determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports that the Veteran’s service-connected disabilities, in the aggregate, prevent him from securing or following substantially gainful employment. Accordingly, entitlement to a TDIU is warranted prior to July 14, 2014. 6. Since July 14, 2014, entitlement to a TDIU is dismissed as a matter of law. Since July 14, 2014, the issue of TDIU is moot. As this Board decision restores the Veteran’s 50 percent rating for bilateral pes planus with plantar fasciitis and 20 percent rating for cervical degenerative joint disease status post spine fusion, the Veteran’s combined schedular rating is 100 percent effective July 14, 2014. The Board acknowledges that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant’s disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim”). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008). (Continued on the next page)   However, the Veteran’s claim for TDIU is based on the combined impact of his service-connected disabilities. See July 2014 statement in support of claim; July 2017 Board hearing. The evidence does not show that the Veteran is unemployable as a result of a single disability. Accordingly, there is no single disability rated at 100 percent disabling with additional disabilities rated at a combined 60 percent to warrant an award of Special Monthly Compensation. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley, 22 Vet. App. at 280. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Samuelson, Counsel