Citation Nr: 20003365 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-24 713 DATE: January 14, 2020 ORDER Restoration of the 40 percent rating for degenerative disc disease (DDD) of the lumbar spine is granted, effective August 1, 2014. REMANDED Entitlement to a disability rating in excess of 40 percent for DDD of the lumbar spine is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Regional Office’s (RO’s) reduction of the 40 percent rating to 20 percent for the Veteran’s connected DDD of the lumbar spine was not based on improvement that was reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction of the Veteran’s rating for his service-connected DDD of the lumbar spine from 40 percent to 20 percent, was not proper; the criteria for restoration of the 40 percent rating, effective August 1, 2014, are met. 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1972 to June 1973. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) RO. The issue of a TDIU is raised in the record and is therefore part and parcel of the increased rating claim currently on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, a derivative TDIU claim has been added to the instant appeal. Rating Reduction Claim 1. The propriety of the reduction of a 40 percent rating to a 20 percent rating, effective August 1, 2014, for DDD of the lumbar spine In this case, the Veteran disagrees with the reduction of the disability rating of his DDD of the lumbar spine. Historically, in a December 2007 rating decision, the RO granted service connection for DDD of the lumbar spine and assigned a 20 percent rating, effective February 12, 2007. In a May 2010 rating decision, the RO increased the rating to 40 percent, effective February 19, 2009. In September 2012, the RO proposed to reduce the Veteran’s rating to 20 percent. In its May 2014 rating decision, the RO reduced the rating from 40 percent to 20 percent, effective August 1, 2014. The Veteran appealed, asserting that he wanted a higher rating as there was no improvement but rather a worsening of his disability. Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. When a RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). As stated above, the rating of 40 percent was in effect from February 19, 2009, to August 1, 2014, when the reduction was implemented. Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) apply, which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. Where a rating has been in effect for five years or more, as in this case, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for disease subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical 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. 38 C.F.R. § 3.344(a). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. In considering the propriety of a reduction in this case, a review of the regulations for establishing disability ratings is appropriate. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. A review of the RO’s May 2014 rating decision shows that the RO appears to have essentially analyzed the issue of reduction of the 40 percent rating just as it would a claim for an increased rating, but this is not the correct standard to apply in the context of rating reductions. In other words, the RO’s analysis only discussed that the Veteran range of motion (ROM) and incapacitating episodes, pursuant to DC 5235 to 5243, and did not discuss the provisions of 38 C.F.R. § 3.344 in its analysis. Of particular note, its analysis did not discuss the issue of whether it was reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a) (emphasis added). The Court of Appeals for Veterans Claims has stated that both decisions by the RO 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). Brown, 5 Vet. App. at 413; 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). Since the rating decision that accomplished the reduction of the 40 percent rating for the Veteran’s service-connected DDD of the lumbar spine did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy in this case is a restoration of the 40 percent rating effective on the date of the reduction. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). For these reasons, the Board finds that restoration of the 40 percent rating for the Veteran’s DDD of the lumbar spine, effective August 1, 2014, is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent for DDD of the lumbar spine is remanded. As decided herein, the Board restores the 40 percent rating. The claim for a higher rating for DDD of the lumbar spine is now being remanded for a new VA examination. In his May 2016 VA Form 9, the Veteran asserted that his last VA examination was inadequate as it only lasted eight minutes and he was not asked to show any movement. Additionally, the Veteran’s spouse stated in July 2019 that the past three years had been “the worst” with severe flare-ups requiring him to remain in bed for 16 days in April 2017, for about a month and a half starting in May 2018, and for another month and a half starting in January 2019. Moreover, the Veteran submitted a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) completed in June 2019, reflecting forward flexion to 25 degrees. However, the examiner did not specify at which point pain started, and did not address all the requirements pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016). Given the suggestion of a possible worsening, a new examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). 2. Entitlement to a TDIU is remanded. The Veteran specifically raised the issue of entitlement to a TDIU in his spouse’s July 2019 lay statement, as well as the Back DBQ dated June 2019. Additional development is necessary prior to adjudicating the claim on the merits. The Veteran’s TDIU is inextricably intertwined with the claim remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, this claim is also remanded. The matters are REMANDED for the following actions: 1. Provide the Veteran with: a) the appropriate notice as to how to substantiate a claim for a TDIU; and b) a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, with instructions to return the completed form to the RO. 2. Provide a VA compensation examination by an appropriate medical professional to determine the current severity of the Veteran’s service-connected DDD of the lumbar spine. All necessary testing must be completed, to include Electromyography (EMG) testing, if warranted. In evaluating the disability, the examiner is reminded to: a) Clearly indicate all orthopedic and any neurological manifestations of the Veteran’s service-connected DDD of the lumbar spine. b) Test the ROM of the thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, clearly explain why that is so. c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. d) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to lumbar spine degenerative disc disease and lower extremity radiculopathy alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. d) Comment on whether any functional impairment is present in the Veteran’s ability to perform work or work-like tasks due to the service-connected DDD of the lumbar spine. The examiner should provide an explanation for any conclusions reached. 3. Thereafter, readjudicate the remanded claims on appeal. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee, Associate 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.