Citation Nr: 20002928 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 19-08 917A DATE: January 14, 2020 ORDER The rating reduction from 40 percent to 20 percent effective August 1, 2018, for lumbar myalgias was proper. FINDINGS OF FACT 1. In a rating decision dated on January 4, 2016, and issued to the Veteran and his attorney on March 18, 2016, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for a disability rating greater than 40 percent for lumbar myalgias; this decision was not appealed and became final. 2. In a rating decision dated on April 27, 2018, and issued to the Veteran and his attorney on May 16, 2018, the AOJ reduced the disability rating from 40 percent to 20 percent effective August 1, 2018, for the Veteran’s service-connected lumbar myalgias. 3. Reexaminations disclosed sustained improvement in the Veteran’s service-connected lumbar myalgias. CONCLUSION OF LAW The reduction of the disability rating for lumbar myalgias was proper; the criteria for a reduction in the disability rating from 40 percent to 20 percent effective August 1, 2018, for lumbar myalgias was proper. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1980 to November 1984. 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 Although the Board recognizes that single-judge memorandum decisions of the Court are not binding precedent, the unpublished single-judge memorandum decision of the Court in Green can be considered persuasive authority in this appeal.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 40 percent to 20 percent effective August 1, 2018, for his service-connected lumbar myalgias, the Board finds that this issue should be recharacterized as stated above. The Board next observes that the Veteran’s attorney challenged the adequacy of a VA examination conducted in July 2017 in an October 17, 2017, letter. In advancing an argument concerning the adequacy of the medical evidence obtained by the AOJ, the Veteran, through his attorney, appears to be raising a general challenge to the professional competence of the VA examiner who conducted the July 2017 VA examination. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner’s competence in the first instance). Neither the Veteran nor his attorney has raised a specific challenge to the professional medical competence or qualifications of the July 2017 VA examiner. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner’s competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner’s qualifications. Id. Other Federal Circuit precedent also suggests that VA may rely upon the medical evidence obtained by the AOJ during the pendency of this appeal, including the July 2017 VA examination, in adjudicating the Veteran's currently appealed claim. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his attorney has identified or submitted any evidence or argument that the July 2017 VA examiner was not competent or lacked the professional medical training necessary to review the claims file and provide a competent opinion concerning the nature and severity of the Veteran’s service-connected lumbar myalgias. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291 92. Instead, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner’s competence in the first instance before VA is required to present evidence of the examiner’s professional qualifications in order to rebut this challenge. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner’s competence in the first instance, then VA is not required to prove any examiner’s competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019). There has been no showing or even an allegation that the July 2017 VA examiner was not competent or did not report accurately what he found in his review of the claims file. The Board also finds that the July 2017 VA examination is adequate for evaluation purposes because it addressed fully all of the Veteran's contentions regarding the nature and severity of his service-connected lumbar myalgias. Whether a rating reduction from 40 percent to 20 percent effective August 1, 2018, for lumbar myalgias was proper The Board finds that the rating reduction from 40 percent to 20 percent effective August 1, 2018, for lumbar myalgias 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 lumbar myalgias which the AOJ implemented in the currently appealed rating decision issued in May 2018. He specifically contends that his lumbar myalgias remained moderately severely disabling throughout the appeal period, rendering the rating reduction improper. The record evidence does not support his assertions. It shows instead that reexaminations of the Veteran’s service-connected lumbar myalgias demonstrated sustained improvement, supporting the rating reduction. In considering the propriety of the reduction, the Board observes that, in a January 2016 rating decision, the AOJ denied the Veteran’s claim for a disability rating greater than 40 percent for lumbar myalgias. The AOJ essentially determined that, although recent medical evidence showed some improvement in this disability, sustained improvement had not been shown. The AOJ also determined that, given the likelihood of improvement in the symptomatology attributable to the Veteran’s service-connected lumbar myalgias, a routine future examination had been scheduled to evaluate the nature and severity of this disability. This decision was not appealed and became final. As noted elsewhere, the AOJ reduced the disability rating for the Veteran’s service-connected lumbar myalgias from 40 percent to 20 percent effective August 1, 2018, in the currently appealed rating decision issued in May 2018. The Board notes that, because this rating reduction reduced the Veteran’s overall VA disability compensation, the AOJ was required to comply with the due process provisions for rating reduction claims found in § 3.105(e). See 38 C.F.R. § 3.105(e) (2019). The Board next notes that the AOJ complied with the due process provisions for rating reduction claims. Id. The Veteran requested, through his attorney, a pre-determination hearing and, after being notified of the date of this hearing by the AOJ, requested a phone call with AOJ personnel in lieu of this hearing. This phone call occurred on November 15, 2017, and is documented on a VA Form 21 0820 associated with the Veteran’s claims file. The Veteran’s attorney asserted in a letter dated on October 25, 2017, and date-stamped as received by VA that same day, that the AOJ had failed to send notice of the proposed rating reduction to him. This assertion is not supported by a review of the record evidence. The Board notes initially that the September 22, 2017, letter from the AOJ notifying the Veteran of the proposed rating reduction from 40 percent to 20 percent for his service-connected lumbar myalgias was copied to his attorney at his mailing address of record. Among other things, the September 22, 2017, letter from the AOJ advised the Veteran of his right to a personal (or pre-determination) hearing regarding the proposed rating reduction. The argument presented by the Veteran’s attorney in his October 25, 2017, letter also is belied by a letter from the same attorney dated on October 17, 2017, or 8 days earlier, which begins, “Please accept this correspondence in response to your proposal dated September 22, 2017, with the rating decision dated September 19, 2017. The Veteran disputes the propriety of the reduction of his lumbar myalgias.” (Emphasis added). The Veteran’s attorney cannot have it both ways. His October 17, 2017, letter clearly shows that he received the courtesy copy of the September 22, 2017, proposed rating reduction which the AOJ mailed to him at his mailing address of record. His subsequent assertion of non-receipt of the proposed rating reduction in the October 25, 2017, letter simply beggars belief. Even assuming arguendo that the Veteran’s attorney did not receive a copy of the September 22, 2017, letter from the AOJ concerning the proposed rating reduction, the Board notes that 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’s attorney has presented directly contradictory evidence on the issue of whether he received the September 22, 2017, letter with the proposed rating reduction. And his argument alleging non-receipt is nothing more than a mere assertion which is insufficient to rebut the presumption (amply demonstrated by the record evidence in this appeal) that the AOJ properly mailed a copy of the proposed rating reduction to him at his mailing address of record. Thus, the Board finds that the argument concerning alleged non-receipt of the proposed rating reduction presented by the Veteran’s attorney in his October 25, 2017, is meritless. The 40 percent rating for a left ankle disability was in effect for more than 5 years when it was reduced to 20 percent effective August 1, 2018. See 38 C.F.R. § 3.344(c) (2019). The AOJ essentially concluded in the May 2018 rating decision that the rating reduction was warranted because reexaminations of the Veteran’s service-connected lumbar myalgias showed sustained improvement in the symptomatology attributable to this disability. The medical evidence shows sustained improvement in the Veteran’s service-connected left ankle disability. In other words, the Board concludes that the record evidence supports the rating reduction implemented by the AOJ in the May 2018 rating decision. For example, on VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in December 2015, the Veteran’s complaints included occasional numbness of the left lower extremity. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. He experienced flare-ups of low back pain with prolonged standing. Range of motion testing of the thoracolumbar spine showed forward flexion to 50 degrees and no additional limitation of motion on repetitive testing. Physical examination showed no evidence of pain with weight bearing, mild paralumbar tenderness, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, normal deep tendon reflexes, normal sensation in the thighs, knees, right lower extremity, and right foot/toes, decreased sensation of the left lower extremity and left foot/toes, and no ankylosis or intervertebral disc syndrome. The Veteran regularly used a wheelchair. X-rays showed arthritis. An magnetic resonance imaging (MRI) scan of the lumbar spine taken in November 2014 showed mild to severe facet joint disease from L1-S1, minimal to mild canal stenosis from L2-L5, and neural foraminal narrowing L2-L5. The diagnoses included degenerative arthritis of the spine and lumbar degenerative disc disease. On VA back (thoracolumbar spine) conditions DBQ in July 2017, the Veteran’s complaints included constant aching pain with intermittent sharp shooting pain down his posterior left leg. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. He experienced flare-ups of low back pain with increased pain and decreased range of motion. He denied experiencing any functional loss or functional impairment. Range of motion testing showed forward flexion to 60 degrees with pain not causing functional loss and no additional limitation of motion on repetitive testing. Physical examination showed localized tenderness to palpation of the joint or associated soft tissues with moderate pain in the left paraspinal region, pain with weight bearing, no guarding or muscle spasm, 5/5 muscle strength throughout except for 4/5 left knee muscle strength, no muscle atrophy, normal deep tendon reflexes and sensation, negative straight leg raising bilaterally, and no ankylosis, neurologic abnormalities, or intervertebral disc syndrome. The Veteran constantly used a cane. There was objective evidence of pain in non-weight bearing. Passive range of motion was the same as active range of motion. The diagnosis was lumbosacral strain. On VA back (thoracolumbar spine) conditions DBQ in February 2018, the Veteran’s complaints included low back pain. He experienced flare-ups of low back pain with “limited movement” and needing assistance with standing and walking. He was unable to sit or stand for a long period of time. Range of motion testing showed forward flexion to 75 degrees with moderate pain with additional limitation of motion on forward flexion to 70 degrees with repetitive testing. Repeated use over time showed forward flexion to 65 degrees due to fatigue. Physical examination showed localized tenderness to palpation of the joint or associated soft tissues, guarding or muscle spasm not resulting in an abnormal gait or abnormal spinal contour, 4/5 muscle strength in the hips, ankles, and great toes, 3/5 muscle strength in the knees, no muscle atrophy, normal deep tendon reflexes, normal sensation in the thighs and knees, decreased sensation of the bilateral lower extremities and feet/toes, positive straight leg raising bilaterally, no ankylosis or other neurologic abnormalities, and intervertebral disc syndrome without any episodes of acute signs and symptoms requiring bed rest prescribed by a physician in the previous 12 months. X-rays showed arthritis. There was anterior listhesis of L4-5 with arthropathy. The diagnoses were intervertebral disc syndrome and spondylolisthesis. On VA outpatient neurosurgery consult in March 2018, the Veteran’s complaints included chronic low back pain. His low back pain radiated posteriorly down both legs with the left leg worse than the right leg. The impressions included lumbar spondylosis and degenerative disc disease and chronic low back pain. On VA outpatient treatment in November 2018, the Veteran’s complaints included low back pain. His low back pain radiated down in to his knees. “He states that it is essentially painful for him at all times even when sitting or lying down.” He was overweight. Neurologic examination showed he could walk slowly with a wheeled walker. The assessment included chronic low back pain. The Veteran was advised to work on weight reduction and exercise to relieve his low back pain because surgery would not benefit him “significantly.” In May 2019, the Veteran’s complaints included ongoing weakness of the bilateral lower extremities. He denied any bowel or bladder incontinence. Physical examination showed he was obese and bilateral proximal thigh weakness. The assessment included progressive low back pain with radiculopathy and progressive bilateral lower extremity weakness. The Veteran had back surgery in June 2019 at a private hospital. The pre-operative and post-operative diagnosis was bilateral degenerative spondylolisthesis. He was discharged home on the second post-operative day in stable condition. The Veteran contends that the rating reduction from 40 percent to 20 percent effective August 1, 2018, for his service-connected lumbar myalgias was improper. The record evidence does not support his assertions regarding the propriety of the rating reduction. It shows instead that there was sustained improvement in the symptomatology attributable to the Veteran’s service-connected lumbar myalgias during the appeal period. Range of motion testing of the Veteran’s thoracolumbar spine showed improvement in forward flexion from 50 degrees in December 2015 to 60 degrees in July 2017 to 65 degrees in February 2018. Although intervertebral disc syndrome of the lumbosacral spine was diagnosed on VA examination in February 2018, the Veteran had not experienced any episodes of acute signs and symptoms requiring bed rest prescribed by a physician in the previous 12 months. The Board acknowledges the Veteran’s reported ongoing problems with chronic low back pain which are well documented in his VA outpatient treatment records. Nevertheless, his VA outpatient treating clinicians advised him to work on weight reduction and exercise in order to treat his chronic low back pain because he was not a good surgical candidate and they concluded that low back surgery would not benefit him “significantly.” There is no indication in the record evidence that the Veteran experienced forward flexion 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine as is required for a 40 percent rating under DC 5237. See 38 C.F.R. § 4.71a, DC 5237 (2019). Nor is there any indication that the Veteran experienced unfavorable ankylosis of the entire thoracolumbar spine or the entire spine as is required for a 50 or 100 percent rating under DC 5237. Id. Ankylosis was not found on either the December 2015, July 2017, or February 2018 VA examinations. As noted in the Introduction, in his October 17, 2017, letter, the Veteran’s attorney challenged the adequacy of a VA examination conducted in July 2017. The attorney asserted in his October 17, 2017, letter that the July 2017 VA examiner erred in concluding that he could not determine whether any of the DeLuca factors limited the Veteran’s functional ability with flare-ups of low back pain without resorting to mere speculation at that examination. The July 2017 VA examination report shows that the VA examiner reached this conclusion regarding his inability to determine the extent of the Veteran’s reported functional ability with flare-ups of low back pain because he was “[n]ot examined during [a] flare up” of low back pain. In other words, the July 2017 VA examiner clearly explained why he could not conclude whether the Veteran’s functional ability due to flare-ups of low back pain was limited by any of the DeLuca factors because he was not being examined during a flare-up of low back pain. Thus, the Board finds that the July 2017 VA examination report is adequate for VA adjudication purposes. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (discussing adequacy of medical opinion evidence). Taken together, the record evidence does not suggest that restoration of a 40 percent rating is warranted at any time during the appeal period. In summary, the Board finds that the rating reduction from 40 percent to 20 percent effective August 1, 2018, for lumbar myalgias 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.