Citation Nr: 19148331 Decision Date: 06/20/19 Archive Date: 06/20/19 DOCKET NO. 14-36 784 DATE: June 20, 2019 ORDER As the February 2015 reduction of the Veteran’s 50 percent rating was improper, restoration of the 50 percent rating for service-connected degenerative disc disease of the lumbar spine with chronic myositis, effective May 1, 2015, is granted. Entitlement to a rating in excess of 50 percent for service-connected degenerative disc disease of the lumbar spine with chronic myositis is denied. FINDINGS OF FACT 1. A February 2015 rating decision decreased the rating for the Veteran’s service-connected degenerative disc disease of the lumbar spine with chronic myositis from 50 percent to 20 percent, effective May 1, 2015. 2. At the time of February 2015 rating decision, the 50 percent rating for service-connected degenerative disc disease of the lumbar spine with chronic myositis was in effect from June 28, 2004 to May 1, 2015, over five years. 3. The February 2015 rating decision, which reduced the Veteran’s rating for service-connected degenerative disc disease of the lumbar spine with chronic myositis from 50 percent to 20 percent, effective May 1, 2015, did not consider required regulatory provisions and denied the Veteran due process. 4. The Veteran’s degenerative disc disease of the lumbar spine with chronic myositis has been productive of severe pain with functional impairment and limited motion during flare-ups, but without unfavorable ankylosis of the entire spine or incapacitating episodes totaling at least 6 weeks in a 12 month period. CONCLUSIONS OF LAW 1. The February 2015 rating decision, which reduced the Veteran’s rating for his service-connected degenerative disc disease of the lumbar spine with chronic myositis, from 50 percent to 20 percent, is void ab initio, and the criteria for restoration of the 50 percent rating for this disability are met. 38 C.F.R. § 3.344. 2. The criteria for a rating in excess of 50 percent for degenerative disc disease of the lumbar spine with chronic myositis are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Codes. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1950 to November 1952, and the United States Air Force from January 1953 to January 1957. In February 2018, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board previously remanded this case in April 2018. The Board finds substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that there is evidence that the Veteran’s low back disability impacts his ability to work. However, in this case, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in an August 2012 rating decision. The Veteran did not initiate an appeal from this decision. Such adjudication constitutes a permissible bifurcation of the TDIU claim from the increased rating claim here on appeal. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006); Holland v. Brown, 6 Vet. App. 443, 447 (1994); see also Locklear v. Shinseki, 24 Vet. App. 311 (2011). Whether reduction in the disability rating for degenerative disc disease of the lumbar spine with chronic myositis from 50 percent to 20 percent, effective May 1, 2015, was proper. The issue on appeal is whether the reduction in the disability rating from 50 percent to 20 percent for degenerative disc disease of the lumbar spine with chronic myositis, effective May 1, 2015, was legally proper. Regulations provide that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. The veteran will be notified of the proposed reduction, that he has 60 days to present evidence showing why the reduction should not be implemented, and that he may request a hearing. 38 C.F.R. § 3.105(e). In the instant case, the Veteran was notified of the proposed reduction in a September 2014 rating decision and given 60 days to respond. Accordingly, the notice provisions of 38 C.F.R. § 3.105(e) were met in this case. The provisions of paragraphs § 3.344 (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). In this case, the effective date for the Veteran’s 50 percent rating for degenerative disc disease of the lumbar spine with chronic myositis is June 28, 2004. Thus, at the time of the September 2014 rating decision, the 50 percent rating had been in effect for more than five years. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. See 38 C.F.R. § 3.344(a). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See Id. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination -- months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. See 38 C.F.R. § 3.344(b). In Brown v. Brown, 5 Vet. App. 413, 420 (1993), the United States Court of Appeals for Veterans Claims (Court) articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations.” Third, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. At a December 2004 VA examination, the Veteran reported severe daily flare-ups where his body would just shut down and he could not move. Some days he could hardly walk more than a ¼ a block and other days, he could not even get up. Although he could forward flex approximately to 50 degrees, he experienced pain at 20 degrees. He would not further flex due to pain. The examiner noted that the Veteran had notable pain with motion. Based on the severe functional impairment documented in this examination, in a February 2005 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a 50 percent rating for unfavorable ankylosis of the thoracolumbar spine under the General Rating Formula. See 38 C.F.R. § 4.71a. Subsequent VA examinations in December 2005 and March 2006 also documented pain in all range of motion and severe functional impairment. Significantly, the March 2006 examination noted flexion to only 10 degrees with pain at 10 degrees. The Veteran submitted a claim for an increased rating in February 2011. The Veteran was afforded a VA examination in June 2011. The Veteran reported severe daily pain. On examination, there was spasm, guarding, tenderness, weakness and pain with motion. On active range of motion, flexion was to 60 degrees and the examiner noted that there was objective evidence of pain on active range of motion. There was also objective evidence of pain following repetitive motion, but no additional limitations were observed. It was noted that the Veteran experienced decreased mobility, problems with lifting and carrying, decreased strength, and pain. The Veteran also reported getting tired easily due to back pain. In a July 2011 rating decision, the AOJ continued the 50 percent disability rating, which was appealed by the Veteran in December 2011. The Veteran was afforded another VA examination in July 2012. At this examination, the Veteran could flex to 90 degrees with pain beginning at 45 degrees. There was no change upon repetitive use testing. The Veteran experienced incoordination, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight-bearing. The Veteran also had tenderness, abnormal spinal contour and decreased muscle strength. Additionally, the Veteran used a brace and cane. It was noted that he would not be able to lift more than 20 pounds; walking more than one mile would be difficult; and sitting or standing longer than 45 minutes would be difficult. He was unable to walk stairs, bend or squat. In the September 2014 rating decision, the AOJ proposed to reduce the Veteran’s rating to 20 percent based on the findings in the June 2011 and July 2012 examinations. Thereafter, the AOJ issued the February 2015 rating decision reducing the Veteran’s disability rating to 20 percent, effective May 1, 2015. Importantly, the September 2014 and February 2015 rating decisions as well as subsequent supplemental statements of the case (SSOC) failed to include or discuss the provisions of 38 C.F.R. § 3.344. Furthermore, as a factual matter, to the extent that the AOJ indicated that the findings in the June 2011 and July 2012 examination reports warranted the reduction, when comparing the actual functional impairment in the two examinations reports with the prior examinations dated in 2004, 2005 and 2006, the findings are essentially the same. In this regard, severe limitations were noted on walking, sitting and standing. There was also pain noted on range of motion testing. The July 2012 VA examination also noted that the Veteran could not bend or squat. Significantly, as previously found by the Board, the July 2012 VA examination is inadequate as it was not fully compliant with the United States Court of Appeals for Veterans Claims (Court) decision in the case of Correia v. McDonald, 28 Vet. App. 158 (2016). Likewise, the June 2011 VA examination also did not comply with Correia. In this regard, neither examination included joint testing in passive motion as well as weight-bearing and nonweight-bearing. Similarly, both VA examiners failed to provide an estimate in degrees of the Veteran’s functional loss during flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26, 31 (2017), 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. Id. As such, these examinations also do not comply with Sharp. In sum, both examinations are less full and complete than those on which payments were authorized and continued and, thus, cannot be used as a basis of reduction. Further, importantly, the Veteran has competently reported no change in his disability and has maintained that he has continued to experience painful motion and severe functional impairment in his activities of daily living. Again, his lay statements also weigh against a finding that any material improvement would be maintained under the ordinary conditions of life. The Court has stated that both decisions by the AOJ and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992); and Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant’s rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Simply stated, as the February 2015 rating decision that accomplished the reduction of the 50 percent evaluation for the Veteran’s service-connected degenerative disc disease of the lumbar spine with chronic myositis did not apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The Board notes that the Veteran was never provided notice of 38 C.F.R. § 3.344 in the February 2015 rating decision or subsequent SSOCs; the decision to reduce was not in accordance with the law because the AOJ did not, for instance, make a finding that the June 2011 and July 2012 VA examinations, which were used as a basis for the reduction, were as full and complete as the examination on which the 50 percent rating was established in 2004; and there were also no findings that it was reasonably certain that any material improvement found would be maintained under the ordinary conditions of life. In sum, the Board finds that the Veteran’s 50 percent evaluation was improperly reduced, that the reduction of the evaluation is void ab initio, and that the 50 percent evaluation for the Veteran’s service-connected degenerative disc disease of the lumbar spine with chronic myositis should be restored. Accordingly, the Board finds that restoration of the 50 percent evaluation for service-connected degenerative disc disease of the lumbar spine with chronic myositis, effective May 1, 2015, is warranted. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). Entitlement to a rating in excess of 50 percent for degenerative disc disease of the lumbar spine with chronic myositis In light of the decision above restoring the Veteran’s 50 percent rating for degenerative disc disease of the lumbar spine with chronic myositis throughout the course of the appeal, the Board now turns to whether a rating in excess of 50 percent is warranted. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to compensation has already 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). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The General Rating formula for Diseases and Injuries of the Spine provides for the disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating formula, ratings are assigned as follows: a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). See Mitchell, supra. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The preponderance of the evidence of record demonstrates that an evaluation in excess of 50 percent is not warranted at any time during the course of the appeal. Under the General Rating Formula, a higher 100 percent disability evaluation is not warranted as there is no evidence of unfavorable ankylosis of the entire spine. Id. The December 2018 VA examination clearly found no objective evidence of ankylosis. Further, the prior VA examinations in June 2011 and July 2012 also showed no evidence of ankylosis. The remaining evidence of record also shows that the Veteran has been capable of some limited motion in his spine throughout the pendency of this claim. As such, the evidence demonstrates that the Veteran does not suffer from unfavorable ankylosis of the entire spine. Moreover, since the Veteran has been granted the maximum rating possible under limitation of motion for the lumbar spine, a further analysis under DeLuca, supra, would not result in a higher rating. Johnston v. Brown. Finally, a 60 percent disability evaluation is also warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, there is no evidence to suggest that the Veteran has suffered from incapacitating episodes, as defined at 38 C.F.R. § 4.71a, for a total time period of at least 6 weeks during any 12 month period. All of the VA examinations clearly found no evidence of physician required bed rest. Moreover, the Veteran and his representative have not specifically identified any treatment records that show incapacitation requiring physician prescribed bed rest for this duration of time. As such, a higher disability evaluation is not warranted based on incapacitating episodes. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his low back disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. With respect to any associated objective neurologic abnormalities, with the exception of the Veteran’s already service-connected radiculopathy of the right and left lower extremities, which are not currently before the Board, there have been no findings of associated neurological abnormalities. All of the relevant VA examinations clearly found there were no such disorders and the remaining evidence is also silent with respect to any such findings. Thus, an additional separate compensable rating is not warranted for any other neurological symptoms and the Veteran’s current symptoms are adequately contemplated under the assigned 50 percent disability rating. Based upon the guidance of the Court in Hart, cited above, the Board has considered whether a staged rating is appropriate. However, as outlined above, the Veteran has not been entitled to a disability evaluation in excess of 50 percent at any point during the course of the appeal. As such, staged ratings are not warranted.   In conclusion, a rating in excess of 50 percent for degenerative disc disease of the lumbar spine with chronic myositis is not warranted. In reaching this conclusion, the Board has applied the benefit-of-the doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats 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.