Citation Nr: 19166312 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 16-45 797 DATE: August 27, 2019 ORDER The rating reduction from 40 percent to 20 percent, effective July 1, 2016, for intervertebral disc syndrome (IVDS), was proper, and the appeal for restoration is denied. The rating reduction from 10 percent to 0 percent, effective July 1, 2016, for left hip sprain with limitation of extension was proper, and the appeal for restoration is denied. FINDINGS OF FACT 1. Improvement in the Veteran’s IVDS, sufficient to warrant reduction of the disability rating to 20 percent under the applicable rating criteria, was demonstrated as of July 1, 2016. 2. Improvement in the Veteran’s left hip sprain with limitation of extension, sufficient to warrant reduction of the disability rating to 0 percent under the applicable rating criteria, was demonstrated as of July 1, 2016. CONCLUSIONS OF LAW 1. The rating reduction for IVDS, from 40 to 20 percent, effective July 1, 2016, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code (DC) 5243. 2. The rating reduction for left hip sprain with limitation of extension, from 10 to 0 percent, effective July 1, 2016, was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, DC 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1974 to June 1975. In April 2019, the Veteran testified at a videoconference hearing at the Regional Office (RO) before the undersigned Veterans Law Judge. Reductions The Veteran contends that the reductions of the rating of IVDS from 40 to 20 percent, effective July 1, 2016, and the rating of left hip sprain with limitation of extension, from 10 to 0 percent, effective July 1, 2016, were improper. As a preliminary matter, the Board notes that the Veteran does not contend, and the evidence does not reflect, noncompliance with the procedural requirements for rating reductions. 38 C.F.R. § 3.105(e). He was properly notified of the RO’s proposed reductions in April 2015, and that this would reduce his overall compensation from the 100 to the 90 percent disabled rate. Therefore, the Board will focus only upon the propriety of the reduction. The criteria governing certain rating reductions for certain service-connected disabilities is found in 38 C.F.R. § 3.344. Because the 40 percent rating for IVDS, and the 10 percent rating for left hip sprain with limitation of extension, were in effect for less than five years at the time the reduction took place, the provisions of 38 C.F.R. § 3.344(a),(b) do not apply. Rather, 38 C.F.R. § 3.344(c) applies, and it provides that reexaminations which disclose improvement in physical or mental disabilities which have not become stabilized and which are likely to improve may be used to support a reduction in the rating for such disabilities. Additionally, there are general VA regulations that apply to all rating reductions regardless of whether the rating was in effect for 5 years or more. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that the rating specialist must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Brown v. Brown, 5 Vet. App. 413 (1993). 1. Whether the rating reduction from 40 percent to 20 percent, effective July 1, 2016, for IVDS, was proper. The Veteran’s IVDS has been rated under 38 C.F.R. § 4.71a, DC 5243, which provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. By way of history, the Board notes that in a March 2012 rating decision, the RO granted service connection for IVDS, and assigned a 20 percent rating, effective October 4, 2011. In August 2013, the Veteran filed a claim for increased ratings for all of his service-connected disabilities. A VA examination was conducted in September 2013, after which, in a March 2014 rating decision, the RO granted a 40 percent rating for IVDS, effective August 20, 2013 (the date of the VA examination report). In November 2014, the Veteran filed for an increased rating for the service-connected IVDS. In February 2015, a VA examination was conducted to determine the current severity of his IVDS. In April 2015, the RO proposed a reduction of the rating assigned for IVDS, to 20 percent, effective July 1, 2015. No response or additional evidence was submitted by the Veteran, and in an April 2016 rating decision, the proposal was carried out by the RO reducing the service-connected IVDS from 40 to 20 percent, effective July 1, 2016. In May 2016, the Veteran filed a notice of disagreement, indicating the RO needed to get records from his outside doctor, and that his quality of life had been greatly reduced because of his reduced mobility. He reported that since the accident in 1980 he had 4 back surgeries and had degenerative bone disease in the back with advanced arthritis. Review of the record shows that the proposed rating reduction for the Veteran's IVDS was based on a VA examination and other contemporaneous evidence, including VA and private treatment records, which the RO concluded did not support the assignment of a 40 percent rating. In a rating reduction case, VA has the burden of establishing that the disability has improved. Considering the competent evidence of record and applicable law, the Board finds that the disability did improve and that the reduction of IVDS from 40 to 20 percent was proper. Evidence at the time of the reduction, which was effective from July 1, 2016, included VA and private records, and a VA examination report. VA treatment records show that in April 2014, the Veteran reported his back was worse, and he had four surgeries, but he felt like it was out again. It was noted he was slow moving due to back problems. In June 2014, it was noted that he continued to have significant back pain and was taking Vicodin. On examination his back was tender to palpation. In August 2014, he was seen for chronic back pain, which he described at level 8. On a VA examination in February 2015, the Veteran reported he leaned to the left with driving, sitting, and walking. He reported constant lower back pain. He reported flare-ups one to two times a day, moderate in severity, and lasting for hours. He described functional impairment of pain and imbalance. Range of lumbar motion testing revealed forward flexion to 45 degrees and extension to 15 degrees, with pain on motion. He was able to do three repetitions but with no additional loss of function or motion. The VA examiner was unable to opine, without speculation, as to whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over a period of time. It was noted that he had tenderness and guarding of the thoracolumbar spine, resulting in abnormal gait. It was noted that he had an antalgic gait. It was also noted that he had IVDS of the thoracolumbar spine, but did not have signs and symptoms due to IVDS that required bed rest prescribed by a physician or treatment by a doctor in the past 12 months. The Board now turns to the propriety of the rating reduction, and notes that the rating for IVDS was reduced from a 40 to 20 percent, in large part based on the February 2015 VA examination. The range of lumbar motion testing at that examination revealed, at worst, flexion limited to 45 degrees, even after 3 repetitions, and it was noted that he had no episodes due to IVDS that required bed rest prescribed by a doctor and treatment by a doctor in the past 12 months. These findings do not meet the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, and do not even meet the criteria for a compensable rating under the Formula for Rating IVDS, under Diagnostic Code 5243, which is commensurate with the reduced rating. Moreover, these findings in 2015 showed improvement from the VA examination in September 2013, on which lumbar forward flexion was to 35 degrees, with pain at 25 degrees, and there was additional limitation of motion after 3 repetitions. Examination of the low back in 2013 also revealed weakened movement, excess fatigability, instability of station, and disturbance of locomotion, and it was noted that he had incapacitating episodes over past 12 months, lasting at least 4 weeks but less than 6 weeks Further, while the Board must focus on the evidence available at the time the reduction was effectuated, it may consider post-reduction medical evidence in the context of evaluating whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In that regard, the Board notes that the criteria for a rating in excess of 20 percent were not met on a July 2019 VA examination, at which the Veteran continued to report severe back pain and that functional impairment manifested with limits on sitting, standing, walking long periods, and carrying or lifting heavy items; he denied flare-ups. Range of lumbar motion testing also revealed forward flexion to 50 degrees; the examiner found that pain, weakness, fatigability, incoordination did not significantly limit his functional ability; and IVDS was not noted. The Board acknowledges that in April 2019, the Veteran testified that the 2015 VA examination was inadequate, that he was rushed through it, and that they did not get full scoop on his measurements or his symptomology. He testified his symptoms did not improve from the time of the September 2013 VA examination to the February 2015 VA examination – on which the rating reduction was at least partially based. He also testified that he still had low back pain and that his range of motion was limited and he could not bend over and tie his shoes. However, the Board notes there is no indication that the VA examination in 2015 was less complete than the 2013 VA examination, and the contemporaneous medical evidence does not show otherwise. Additionally, his report of low back pain and limited motion was noted on the 2015 VA examination. In view of the foregoing, the Board finds that the reduction of the rating was proper as the overall disability picture did reflect actual improvement. Accordingly, the Board concludes that the reduction of the rating for IVDS from 40 percent to 20 percent was warranted. 2. Whether the rating reduction from 10 percent to 0 percent, effective July 1, 2016, for left hip sprain with limitation of extension, was proper. The Veteran’s left hip strain with limitation of extension has been rated under 38 C.F.R. § 4.71a, DC 5251, which provides for a 10 percent disability rating for limitation of extension of the thigh that is limited to 5 degrees. 38 C.F.R. § 4.71a. By way of history the Board notes that in a March 2012 rating decision, the RO granted service connection for left hip sprain, and assigned a 10 percent rating, effective October 4, 2011. In August 2013, the Veteran filed a claim for an increased rating for all of his service-connected disabilities. A VA examination was conducted in September 2013, after which, in a March 2014 rating decision, the RO continued the 10 percent rating for left hip strain with limitation of extension; and granted service-connection for left hip sprain with limitation of flexion, assigning a 0 percent rating, effective August 20, 2013 (the date of the VA examination report). In November 2014, the Veteran filed for an increased rating for his service-connected disabilities, to include left hip sprain with limitation of extension. In February 2015, a VA examination was conducted to determine the current severity of his left hip disability. In an April 2015 rating decision, the RO proposed a reduction of the rating assigned for the left hip sprain with limitation of extension, to 0 percent. That proposal was carried out by an April 2016 rating decision, in which the RO reduced the service-connected left hip sprain with limitation of extension from 10 to 0 percent, effective July 1, 2016. In May 2016, the Veteran filed a notice of disagreement with that rating decision, indicating that records from his outside doctor were needed, and that his quality of life was greatly reduced because of reduced mobility. He also reported advanced arthritis in his left hip. Review of the record shows that the rating reduction for the Veteran's left hip sprain with limitation of extension was based on the February 2015 VA examination and other contemporaneous evidence of record, including VA and private treatment records, from which the RO essentially concluded the evidence did not support the assignment of a 20 percent rating. In a rating reduction case, VA has the burden of establishing that the disability has improved. In that regard, and upon consideration of the competent evidence of record and applicable law, the Board finds that the reduction of the Veteran’s left hip sprain with limitation of extension from 10 percent to 0 percent was proper. Evidence at the time of the reduction, included VA and private treatment records, and a VA examination report. VA treatment records showed that in May and June 2014, he reported having left hip pain and x-rays showed moderate arthritis. In May 2014, he reported chronic left hip pain, and felt like his hip was grinding and some weakness. In June 2014 he reported his left hip range of motion was okay. On a VA examination in February 2015, the Veteran reported daily hip pain, daily flare-ups with any physical activity, and that flares that were relieved within an hour with pain medication. He described flare-ups as moderate in severity, reported the flare-ups impacted hip function, and described his functional impairment as pain and limited range of motion. Range of motion testing revealed left hip extension to 30 degrees. Pain was noted and pain caused functional loss. The Veteran had hip pain with weight bearing, and tenderness on palpation of the hip joint. He was able to do repetitive use testing, but had no additional loss of function or motion. Additional contributing factors included disturbance of locomotion, and interference with sitting and standing. The examiner was unable to opine, without speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use of the hip over a period of time. Turning to the propriety of the rating reduction, the Board notes that the Veteran's rating for left hip sprain with limitation of extension was reduced from a 10 percent rating to 0 percent based primarily on the previously discussed February 2015 VA examination. The range of lumbar motion testing at that examination revealed, at worst, left hip extension limited to 30 degrees, even after 3 repetitions. Improvement was shown compared to the VA examination in September 2013, at which time left hip range of motion testing revealed extension was limited to greater than 5 degrees, but pain begins at 5 degrees. The Board concludes the findings in 2015 not only show improvement, but do not meet the criteria for a 10 percent rating under the DC 5251, which is commensurate with the reduced rating. (Continued on the next page)   The Board acknowledges the Veteran’s testimony in April 2019 that he felt the VA examination was inadequate, and that his symptoms did not improve from the time of the 2013 VA examination to the 2015 VA examination, however, there is no indication that the VA examination in 2015 was less complete, and contemporaneous medical evidence does not show otherwise. Accordingly, the Board finds that the reduction of the rating was proper as the overall disability picture did reflect actual improvement, and that a reduction of the rating for left hip sprain with limitation of extension from 10 to 0 percent is warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula, 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.