Citation Nr: 19190332 Decision Date: 12/02/19 Archive Date: 12/02/19 DOCKET NO. 14-09 387 DATE: December 2, 2019 ORDER Entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability is denied. The rating reduction from 60 percent to 20 percent effective July 1, 2009, for a lumbosacral spine disability was proper. FINDINGS OF FACT 1. The record evidence shows that the Veteran’s service-connected lumbosacral spine disability is manifested by, at worst, forward flexion to 40 degrees. 2. In a rating decision dated on July 9, 2002, the Agency of Original Jurisdiction (AOJ) assigned a higher 60 percent rating effective February 29, 2000, for the Veteran’s service-connected lumbosacral spine disability; this decision was not appealed and became final. 3. In a rating decision dated on April 30, 2009 and issued to the Veteran and his service representative on May 6, 2009, the AOJ reduced the disability rating from 60 percent to 10 percent effective July 1, 2009, for the Veteran’s service-connected lumbosacral spine disability. 4. In a rating decision dated on November 23, 2009 and issued to the Veteran and his service representative on December 7, 2009, the AOJ assigned a higher 20 percent rating effective July 1, 2009, for the Veteran’s service-connected lumbosacral spine disability. 5. The 60 percent rating for the Veteran’s service-connected lumbosacral spine disability was in effect for more than 5 years when it was reduced to 20 percent effective July 1, 2009. 6. The record evidence shows that the Veteran, without good cause, failed to report for VA examination when it was scheduled in January 2009 for the purpose of determining the current severity of his service-connected lumbosacral spine disability. 7. Reexaminations disclosed sustained improvement in the Veteran’s service-connected lumbosacral spine disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5292-5242 (2019). 2. The reduction of the disability rating for a lumbosacral spine disability was proper; the criteria for a reduction in the disability rating from 60 percent to 20 percent effective July 1, 2009, for a lumbosacral spine disability was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5292-5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from March 1970 to February 1974 and in the U.S. Navy from April 1981 to August 1983. This appeal has a long and complicated procedural history. Most recently, the Board remanded the currently appealed claims to the AOJ for additional development in January 2016. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ schedule the Veteran for appropriate examination to determine the current severity of his service-connected lumbosacral spine disability and readjudicate his claim that the rating reduction from 60 percent to 20 percent effective July 1, 2019, for a service-connected lumbosacral spine disability was not proper (“rating reduction claim”). The requested examination occurred in August 2018 and the AOJ subsequently readjudicated both of the Veteran’s currently appealed claims. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). The Board observes that, in Green v. Nicholson, 21 Vet. App. 512, 2006 WL 3438028 (Vet. App.), the United States Court of Appeals for Veterans Claims (Court) held that, in cases where a rating reduction is on appeal, “the Board must determine whether the reduction of the Veteran’s disability rating was proper and must not phrase the issue in terms of whether the Veteran was entitled to an increased rating, including whether the Veteran was entitled to restoration of a previous rating.” Id., at pp. 3. The Veteran in Green appealed the Board’s denial of a claim for restoration of a 100 percent rating for service-connected prostate cancer. Although the Board recognizes that single-judge memorandum decisions of the Court are not binding precedent, the unpublished single-judge memorandum decision of the Court in Green can be considered persuasive authority in this appeal. Having reviewed the record evidence, to include the Veteran’s consistent lay statements questioning the propriety of the initial rating reduction from 60 percent to 20 percent effective July 1, 2009, alongside his consistent lay statements seeking a disability rating greater than 20 percent effective July 1, 2009, for his service-connected lumbosacral spine disability, the Board finds that the issues on appeal should be recharacterized as stated above. The Board next observes that, although the Veteran’s most recent VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in August 2018 did not comply with Correia, this is not prejudicial error requiring remand. See Correia v. McDonald, 28 Vet. App. 158 (2016). The record evidence shows that the Veteran has not been providing his maximum effort during VA examinations conducted during the appeal period, to include at the most recent examination in August 2018, and appears to be malingering or exaggerating his symptoms. For example, at an August 2012 VA back (thoracolumbar spine) conditions DBQ, the VA examiner concluded that the Veteran was not providing his “full effort” on physical examination “and is overreacting and exaggerating.” The August 2018 VA back (thoracolumbar spine) conditions DBQ examiner similarly stated that, although the Veteran reported experiencing “total paralysis of the left lower extremity and partial paralysis of the right lower extremity…he has normal reflexes in the [bilateral] lower extremities, no muscle atrophy, and imaging studies and records do not support” his assertions regarding the extent of his service-connected lumbosacral spine disability. The August 2018 VA examiner also essentially concluded that the Veteran is malingering in order to obtain financial gain (i.e., an increased rating for his service-connected lumbosacral spine disability). The Board notes here that the Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). In this regard, the Court has held that “[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Having reviewed the record evidence, the Board finds that the Veteran has not cooperated with VA efforts to provide him with an adequate medical examination. The Board also finds that the Veteran appears to be malingering or exaggerating his service-connected lumbosacral spine disability symptomatology and has done so perhaps for years. Thus, the Board concludes that a remand to attempt to obtain another VA examination is not required. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). 1. Entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability The Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability. The Veteran contends that his service-connected lumbosacral spine disability is more disabling than currently evaluated. The record evidence does not support his assertions. It shows instead that this disability is manifested by, at worst, forward flexion to 40 degrees (i.e., a 20 percent rating under DC 5292-5242). See 38 C.F.R. § 4.71a, DC 5292-5242 (2019). For example, on VA back (thoracolumbar spine) conditions DBQ in August 2012, the Veteran’s complaints included low back pain radiating to the mid-spine and sacrum. The Veteran reported flare-ups of low back pain every 2-3 days “in which he has severe pain with no pain relief.” The VA examiner stated that range of motion testing could not be performed because the Veteran stated that he could not hold a standing position and was a high fall risk. This examiner also noted that the Veteran used crutches, walker, and a cane occasionally for ambulation. The VA examiner concluded that the Veteran “is not doing his full effort during the examination and is overreacting and exaggerating” his symptoms. The diagnoses included spondylosis deformans of the lumbar spine. On VA back (thoracolumbar spine) conditions DBQ in April 2016, the Veteran’s complaints included constant low back pain which radiated down both of his legs. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran experienced flare-ups 2 3 times per week which resulted in “more severe and constant” low back pain. He reported being unable to manage stairs and an ability to walk only 2-3 steps “with use of [a] cane.” He was unable to stand more than 5 minutes “with use of [a] cane.” Range of motion testing of the thoracolumbar spine showed forward flexion to 90 degrees with pain causing functional loss and no additional limitation of motion on repetitive testing. Physical examination showed no pain with weight bearing, tenderness to palpation in the bilateral lumbar paraspinal muscles, no ankylosis, and intervertebral disc syndrome without incapacitating episodes. The Veteran constantly used a wheelchair, brace, and cane for ambulation. X-rays showed arthritis. The diagnoses included lumbar spondylosis. On VA back (thoracolumbar spine) conditions DBQ in August 2018, the Veteran’s complaints included constant low back pain which radiated into both legs. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran reported limited mobility due to paralysis although he also reported that he was independent with transferring. He used a manual wheelchair for mobility. Range of motion testing of the thoracolumbar spine showed forward flexion to 40 degrees although the Veteran was “unable to stand or get out of his manual wheelchair.” The VA examiner stated that the Veteran’s “complaints of paralysis made repetitive testing not feasible.” Physical examination showed tenderness to palpation in the lower lumbar spine and no ankylosis, neurologic abnormalities, or intervertebral disc syndrome. The Veteran constantly used a wheelchair and brace for ambulation. The VA examiner stated that, although the Veteran wore a left ankle fixation orthotic, this “does not likely make sense if he has total paralysis of [the] left lower extremity.” This examiner also stated that recent outpatient treatment records showed the Veteran had a left foot drop “which in and of itself would not really be noteworthy if he had total paralysis of the left leg.” X-rays showed arthritis. The VA examiner concluded that, although the Veteran reported experiencing “total paralysis of the left lower extremity and partial paralysis of the right lower extremity,” he had normal reflexes of the bilateral lower extremities, no ankle clonus, no muscle atrophy, and x-rays did not support his reported history. This examiner also concluded that the Veteran did not have any paralysis of the bilateral lower extremities. The diagnoses included degenerative arthritis of the spine and degenerative disc disease of the lumbar spine. The Veteran contends that his service-connected lumbosacral spine disability is more disabling than currently evaluated. His assertions are not supported by the record evidence. It shows instead that the Veteran’s service-connected lumbosacral spine disability is manifested by, at worst, forward flexion to 40 degrees (as seen on VA examination in August 2018). The record evidence also persuasively suggests that the Veteran is malingering or exaggerating the symptoms which he experiences as a result of his service-connected lumbosacral spine disability for financial gain. Different VA examiners concluded in August 2012 and in August 2018 that the Veteran was malingering or exaggerating his service-connected lumbosacral spine disability symptoms. Taken together, the record evidence supports the assignment of a 20 percent rating for the Veteran’s service-connected lumbosacral spine disability under DC 5292-5242 throughout the appeal period. Id. There is no indication that the Veteran experiences at least forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (i.e., a 40 percent rating under DC 5292-5242) such that a disability rating greater than 20 percent for his service-connected lumbosacral spine disability is warranted at any time during the appeal period. Id. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 20 percent for his service-connected lumbosacral spine disability. In summary, the Board finds that the criteria for a disability rating greater than 20 percent for a lumbosacral spine disability have not been met. 2. Whether a rating reduction from 60 percent to 20 percent effective July 1, 2009, for a lumbosacral spine disability was proper The Board finds that the rating reduction from 60 percent to 20 percent effective July 1, 2009, for a lumbosacral spine disability was proper. See generally 38 C.F.R. § 3.344 (2019). The Veteran essentially challenges the propriety of the rating reduction for the service-connected lumbosacral spine disability, which the AOJ implemented in the currently appealed rating decision issued in May 2009. He specifically contends that his lumbosacral spine disability remained severely disabling throughout the appeal period, rendering the rating reduction improper. The record evidence does not support his assertions. It shows instead that the Veteran, without good cause, failed to report for VA examination when it was scheduled in January 2009 for the purpose of determining the current severity of his service-connected lumbosacral spine disability. In considering the propriety of the reduction, the Board observes that, in a July 2002 rating decision, the AOJ assigned a higher 60 percent rating effective February 29, 2000, for the Veteran’s service-connected lumbosacral spine disability. The AOJ concluded that a 60 percent rating was warranted because of the symptomatology attributable to the Veteran’s service-connected lumbosacral spine disability. The AOJ also concluded that February 29, 2000, was an appropriate effective date for this rating because that was the date of the Veteran’s increased rating claim for his service-connected lumbosacral spine disability. As noted elsewhere, the AOJ reduced the disability rating for the Veteran’s service-connected lumbosacral spine disability from 60 percent to 10 percent effective July 1, 2009, in the currently appealed rating decision issued in May 2009. The Board notes here that the AOJ correctly followed the due process procedures for rating reductions outlined in 38 C.F.R. § 3.105(e). See 38 C.F.R. § 3.105(e) (2019). The 60 percent rating for a lumbosacral spine disability was in effect for more than 5 years when it was reduced to 10 percent effective July 1, 2009. See 38 C.F.R. § 3.44(c) (2019). The AOJ essentially concluded in the May 2009 rating decision that the rating reduction was warranted because the Veteran, without good cause, failed to report for VA examination when it was scheduled in January 2009 for the purpose of determining the current severity of his service-connected lumbosacral spine disability. The AOJ also concluded that the Veteran was entitled to a 10 percent rating for his service-connected lumbosacral spine disability because that was the minimum disability rating available for a service-connected lumbosacral spine disability. As also noted elsewhere, the AOJ assigned a higher 20 percent rating effective July 1, 2009, for the Veteran’s service-connected lumbosacral spine disability in a December 2009 rating decision. The AOJ concluded that the Veteran was entitled to a 20 percent rating for his service-connected lumbosacral spine disability based on the findings obtained at an October 2009 VA spine examination. The Veteran has asserted during the pendency of the appeal that he did not receive notification that the disability rating for his service-connected lumbosacral spine disability was being reduced and, as such, the rating reduction is improper. The Board finds that this argument is not supported by a review of the record evidence. The Board notes here that the Veteran’s failure to report for VA examination in January 2009 is the basis for the rating reduction implemented in the May 2009 rating decision. The record evidence shows that a VA examination notice letter was mailed to the Veteran at his then-current mailing address of record on December 26, 2008 and was not returned as undeliverable. The Board notes that the mailing address on the December 2008 VA examination notice letter is the same mailing address used on other contemporaneous correspondence between the Veteran and VA. The Board also notes that the mailing address on the December 2008 VA examination notice letter is the same mailing address previously provided by the Veteran to VA on a June 2008 VA Form 572, “Request for Change of Address/Cancellation of Direct Deposit.” This persuasively suggests that the December 2008 VA examination notice letter was received by the Veteran. Similarly, it appears that the October 2009 VA spine examination is the basis for the assignment of an increased 20 percent rating effective July 1, 2009, for the Veteran’s service-connected lumbosacral spine disability. The Board observes in this regard that correspondence notifying the Veteran of the October 2009 VA examination was mailed to him at his then-current mailing address of record on September 11, 2009 and was not returned as undeliverable. The mailing address on this letter is the same mailing addressed used on other contemporaneous correspondence between the Veteran and VA. This (along with the fact that the Veteran subsequently reported for VA examination in October 2009) persuasively suggests that the October 2009 VA examination notice letter also was received by the Veteran. The Board next notes that multiple rating decisions issued by the AOJ in 2009 concerning the proposed rating reduction, implementing the proposed rating reduction, and then assigning an increased 20 percent rating effective July 1, 2009, for the Veteran’s service-connected lumbosacral spine disability all were mailed to him at his then-current mailing address of record and none were returned as undeliverable. This persuasively suggests that the Veteran was informed of the proposed rating reduction, the implemented rating reduction, and the increased 20 percent rating assigned for his service-connected lumbosacral spine disability contemporaneous to the dates when those rating decisions were issued by the AOJ. The Court has held that “[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While Ashley dealt with the regularity of Board procedures, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the AOJ level. The Court specifically held in Mindenhall that a statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in AOJ operations. The Veteran has presented no evidence – other than his unsupported lay assertions – in order to rebut the presumption of regularity concerning the mailing of relevant documents from the AOJ to him in this appeal. Thus, any argument concerning entitlement to restoration of a 60 percent rating effective July 1, 2009, for a lumbosacral spine disability based on non-receipt of relevant documents is meritless. The Veteran has not presented good cause for his failure to report for VA examination in January 2009. Even assuming arguendo that the Veteran presented good cause for his failure to report for VA examination in January 2009, the Board nevertheless concludes that the medical evidence shows sustained improvement in the Veteran’s service-connected lumbosacral spine disability. In other words, the Board concludes that the record evidence supports the rating reduction implemented by the AOJ in the May 2009 rating decision. For example, on VA spine examination in October 2009, the Veteran’s complaints included “almost constant low back pain” since active service, numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. The Veteran reported weekly flare-ups of low back pain but denied experiencing any incapacitating episodes of spine disease. Physical examination showed normal posture and head position, an antalgic gait, lumbar flattening, scoliosis, guarding, pain with motion, 5/5 motor strength throughout except for 2/5 left ankle dorsiflexion and 4/5 great toe extension which were probably due to a cerebrovascular accident, normal muscle tone, no muscle atrophy, and normal sensation. Range of motion testing of the thoracolumbar spine showed forward flexion to 60 degrees with painful motion and forward flexion to 55 degrees after repetitive testing. X-rays showed spondylosis deformans and scoliosis. The diagnoses included spondylosis deformans of the lumbar spine status-post cerebrovascular accident. On VA spine examination in June 2010, no relevant complaints were noted. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. Physical examination showed normal posture and head position, a normal gait, no ankylosis, guarding, painful motion, and no muscle spasm. Range of motion testing of the thoracolumbar spine showed forward flexion to 60 degrees with painful motion and forward flexion to 55 degrees after repetitive testing. The diagnoses included mild lumbar spondylosis deformans. As noted above, on VA back (thoracolumbar spine) conditions DBQ in August 2012, the VA examiner concluded that the Veteran “is not doing his full effort during the examination and is overreacting and exaggerating” his symptoms. As also noted above, on VA back (thoracolumbar spine) conditions DBQ in April 2016, range of motion testing of the thoracolumbar spine showed forward flexion to 90 degrees with pain causing functional loss and no additional limitation of motion on repetitive testing. As further noted above, on VA back (thoracolumbar spine) conditions DBQ in August 2018, range of motion testing of the thoracolumbar spine showed forward flexion to 40 degrees. The VA examiner stated that the Veteran’s “complaints of paralysis made repetitive testing not feasible.” In a March 2019 addendum to the August 2018 VA back DBQ, the VA examiner stated that there had been several inconsistencies in the Veteran’s physical examination in August 2018. This examiner stated, “If [the] Veteran is unable to walk, then there is no indication for an [ankle fixation orthotic]” which the Veteran wore at the August 2018 VA examination. This examiner concluded that the August 2018 examination findings “are of little value” likely due to the Veteran’s malingering at the examination itself. He noted that the Veteran demonstrated “decreased effort” on range of motion testing at this examination. He also concluded that the Veteran’s lumbosacral spine disability “is not likely severe enough to warrant the use of a wheelchair.” The Veteran contends that the rating reduction from 60 percent to 20 percent effective July 1, 2009, for his service-connected lumbosacral spine disability was improper. The record evidence does not support his assertions regarding the propriety of the rating reduction. It shows instead that he failed to report, without good cause, for VA examination in January 2009 when it was scheduled for purposes of determining the current severity of his service-connected lumbosacral spine disability. The Board already has found that the Veteran’s argument concerning non-receipt of relevant documents from the AOJ, to include the January 2009 VA examination notice letter and rating decisions concerning the disability rating assigned for his service-connected lumbosacral spine disability, is without merit. The record evidence also shows that there was sustained improvement in the symptomatology attributable to the Veteran’s service-connected lumbosacral spine disability during the appeal period. Physical examination findings consistently show that his service-connected lumbosacral spine disability is manifested by, at worst, forward flexion between 30 and 60 degrees (i.e., a 20 percent rating) effective July 1, 2009, under DC 5292-5242. See 38 C.F.R. § 4.71a, DC 5292-5242 (2019). For example, forward flexion of the Veteran’s thoracolumbar spine was 40 degrees on VA examination in August 2018 although the VA examiner noted that the Veteran demonstrated “decreased effort” at this examination and was malingering. The Board is persuaded by the conclusions reached by different VA examiners in August 2012 and in August 2018 that the Veteran is not cooperating with VA’s efforts to provide an adequate medical examination and is malingering or exaggerating the level of disability which he experiences as a result of his service-connected lumbosacral spine disability in order to receive an increased rating for this disability (or, as in this appeal, receive a restored 60 percent rating for this disability). As noted elsewhere, there is no indication that the Veteran’s forward flexion of the thoracolumbar spine is less than 30 degrees or he experiences ankylosis (whether favorable or unfavorable) of the entire thoracolumbar spine or the entire spine such that restoration of a 60 percent rating is warranted at any time during the appeal period. In summary, the Board finds that the rating reduction from 60 percent to 20 percent effective July 1, 2009, for a lumbosacral spine disability was proper. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.