Citation Nr: 20021547 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-63 215 DATE: March 26, 2020 ORDER The reduction to a 20 percent rating for lumbar spine spondylosis and degenerative disc disease (previously evaluated as lumbosacral strain with herniated nucleus pulposus), was not proper; restoration of the 40 percent rating effective February 8, 2012, is granted. Entitlement to a total disability individual unemployability (TDIU) rating is granted for the period between February 8, 2012 to July 19, 2017, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for diabetes mellitus type II (DM II), to include as secondary to medication taken for a service-connected disability, is remanded. Entitlement to a rating in excess of 40 percent for lumbar spine spondylosis and degenerative disease is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. FINDINGS OF FACT 1. A sustained improvement of the Veteran’s ability to function under the ordinary conditions of life and work as a result of his lumbar spine disability, has not been demonstrated. 2. The Veterans service-connected disabilities preclude gainful employment. CONCLUSIONS OF LAW 1. The reduction of the rating for the Veteran’s service-connected lumbar spine, from 40 percent to 20 percent was not proper, and the 40 percent rating is restored from February 8, 2012. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to TDIU for the period from February 8, 2012 to July 19, 2017 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to June 1990 and had active duty for training service from March 20, 1978 to August 5, 1978, and from March 14, 1984 to July 3, 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Court of Appeals for Veterans Claims (Court) has held that a claim of entitlement to TDIU is part and parcel of an underlying increased rating claim, when raised during the open appeal period. See Rice v. Shinseki, 22 Vet. App. 447(2009). In this case, medical records submitted during the period on appeal imply that his spinal disabilities have created an impairment in earning capacity. The Board has included entitlement to TDIU as an issue on appeal; however, as addressed in further detail below, consideration is restricted to the period from February 8, 2012 to July 19, 2017. Finally, the Board acknowledges that within the Veteran’s VA Form 9 his attorney raised the issues of entitlement to earlier effective dates than February 8, 2012, for the grants of increased 20 percent disability ratings for radiculopathy of the left and right lower extremities. The Board will not accept jurisdiction over these issues as they were not timely asserted in the Veteran’s notice of disagreement in September 2013. They were also not raised by the Veteran or his attorney during the RO’s June 2017 telephone conference call when all parties clarified the issues on appeal. Instead, the issues were first raised within the VA Form 9. See VA Form 27-0820. Given the lack of timely notice of disagreement, the Board will not accept jurisdiction over these issues. Propriety of the Reduction of the Lumbar Spine Disability Evaluation This issue stems from a claim for entitlement to a rating in excess of 40 percent received on January 8, 2012. Following receipt of his claim, the RO issued a December 2012 rating decision, which reduced the Veteran’s rating to 20 percent disabling, effective February 8, 2012. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). When reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. Here, the reduction of the rating of the Veteran’s spine did not result in a reduction of compensation payments; therefore, the Department of Veterans Affairs (VA) was not required to issue a rating decision proposal. 38 C.F.R. § 3.105(e). Additionally, at the time the reduction became effective, February 8, 2012, the 40 percent evaluation for the Veteran’s spine had been in effect for less than five years, specifically since January 8, 2009. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply and reexamination disclosing improvement would warrant a rating reduction. 38 C.F.R. § 3.344(c). That said, what remains for Board consideration is whether a sustained improvement occurred. In making this determination, the Board must consider the medical evidence of record at the time of the initial grant of the 40 percent rating to juxtapose it against the evidence present at the time of the reduced rating. The Board must also consider the relevant DCs. In this case, the Veteran’s 40 percent rating was granted in a February 2009 rating decision. The rating decision explained that during the Veteran’s appeal period changes to the rating schedule occurred effective September 23, 2002, and September 26, 2003. When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies. Marcoux v. Brown, 9 Vet. App. 289 (1996): VAOPGCPREC 11-92 (Mar. 24, 1997). VAOPGCPREC 3-2000 (April 10, 2000). Accordingly, the February 2009 rating decision considered the old and new rating criteria, and the Veteran received the benefit of the most favorable rating. The code changes, listed in relevant part, are as follows: criteria effective prior to September 23, 2002 under DC 5295, a 20 percent rating is assigned if there is a lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. A maximum schedular rating of 40 percent is awarded when lumbosacral strain is severe, with listing of the whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a. Criteria effective September 23, 2002 only altered the rating of intervertebral disc syndrome which was not the basis of the Veteran’s 40 percent rating. Finally, under criteria effective September 26, 2003, DC 5242 (General Rating Formula for Diseases and Injuries of the Spine) a 20 percent rating is warranted 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 when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Turning to the record, per the February 2009 rating decision, the Veteran’s 40 percent evaluation was based on a January 2009 VA examination finding of forward flexion 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. At the time, the Veteran reported chronic daily low back pain which was constant. He reported difficulty with dressing below the waist, putting on paints, socks, and shoes as well as difficulty getting in and out of the bath and cleaning himself from the waist down. However, he denied his disability significantly impacted his employment as a red-light technician, as his position primarily required the use of his hands. The examiner recorded range of motion measurements of 25 degrees of forward flexion, 8 degrees of extension, 20 and 15 degrees of right and left lateral flexion respectively, and 20 and 25 degrees of right and left lateral rotation respectively with pain on all range of motion movements. In November 2012, the Veteran was afforded a new VA examination in conjunction with his claim for increased rating. At that time, the Veteran reported chronic low back pain which had progressed to the point of requiring constant use of the cane. The examiner indicated that although still employed the Veteran’s spinal impairments decreased his ability to proficiently perform his work because of an inability to perform prolonged standing, walking, bending, and squatting. The examiner recorded ROM measurements of 35 degrees of forward flexion, 15 degrees of extension, 15 degrees of right and left lateral flexion and rotation with pain on all range of motion movements. Treatment medical records from this period note continued limited flexion, extension, rotation, and lateral flexion as well as pain. VA treatment records did not document an improvement in his condition. To the contrary, February 2012 records note that the Veteran received root block injections with pain relief that was only temporary. Additionally, May 2012 VA records noted that the Veteran was seeking treatment for worsening low back pain and records thereafter note radiofrequency nerve ablations in July and November 2012 for low back pain. In the instant case, the Board finds that the weight of the evidence does not establish that there was sustained improvement in the Veteran’s service-connected lumbar spine disability, including under the ordinary conditions of life and work. The VA examination shows some improvement in his range of motion; however, the medical evidence indicates that the Veteran is still as limited in his functional abilities. He was able to work with no reports of difficulty at the time of the 2009 grant of a 40 percent rating, but at the time of his 2012 examination, per the examiner, he suffered significant impairment due to his back. In addition, he continued to report and seek treatment for severe chronic pain and limitation of ROM. The Board acknowledges that the RO may be correct in finding that the current severity of the Veteran’s lumbar spine, does not meet the rating criteria for a 40 percent evaluation based on limitation of motion. See generally 38 C.F.R. § 4.71a, DC 5242. However, the Veteran does not bear the burden of demonstrating entitlement to retention of the higher evaluation. Brown, 5 Vet. App. at 418. 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). The weight of the evidence of record does not show a sustained improvement in the Veteran’s lumbar spine disability, at the time of the February 2012 reduction. As such, the reduction of the 40 percent evaluation to 20 percent effective from February 8, 2012 was not proper. Therefore, the requirements for restoration have been met. See generally 38 C.F.R. § 3.344. Entitlement to TDIU As indicated above, the record raises the issue of TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, because of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. § 3.341 (a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The Veteran asserts that TDIU is warranted effective February 8, 2012. For clarity, the Board notes that a request for TDIU is moot if VA has found a veteran to be totally disabled as a result of a service-connected disability or combination of disabilities pursuant to the rating schedule. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). In the instant case, from July 19, 2017, the Veteran is in receipt of a 100 percent rating for major depressive disorder (MDD). As a result, the present matter for appellate review is whether TDIU is warranted for the period prior to July 19, 2017. More specifically, whether TDIU is warranted from the Veteran’s current date of claim for his increased rating of the lumbar spine February 8, 2012 until July 19, 2017. Harper v. Wilkie, 30 Vet. App. 356 (2018). Review of the record supports entitlement to an TDIU for this period. The Veteran has the following disability ratings : a 70 percent rating for MDD from February 8, 2012 to July 19, 2017 and a 100 percent thereafter; from February 8, 2012 forward the Veteran has two 20 percent ratings for lumbar radiculopathy of the left and right lower extremities; a restored 40 percent rating for his lumbar spine disability; a 10 percent rating for gastritis, and noncompensable ratings for a right groin cyst. He meets the schedular requirements for TDIU. In addition, VA treatment records document unemployment since January 2012. In June 2018, a Dr. S.B. opined that his combined physical and psychological impairments precluded obtaining and maintaining substantially gainful employment throughout the appeal. Dr. S.B.’s opinion was well rationalized against the record and relevant treatise. There are no opinions to the contrary. Rather the record is replete with opinions from private care physicians and VA examiners which support entitlement to TDIU throughout the entirety of the appeal period. To that end, the November 2012 VA spine examiner specified that his disabilities precluded protracted standing, sitting, and walking and hampered his ability to effectively engage in his former employment. Additionally, a Dr. A.F., Ph.D. opined that the Veteran’s psychological disabilities severely impaired his ability to perform gainful employment. Given the evidence, the Board finds that realistically the combined effect of the Veteran’s disabilities would preclude obtaining and maintaining substantially gainful employment. Entitlement to TDIU for the period from February 8, 2012 to July 19, 2017 is warranted. The Board notes that it has considered whether the Veteran is entitled to an award of special monthly compensation (SMC) on account of the fact that he is being granted TDIU on the basis of one disability and has disabilities independently ratable at 60 percent or greater. See 38 C.F.R. § 3.350 (i)(1); see also Bradley v. Peake, 22 Vet. App. 280 (2008). After consideration of the facts of this case, however, the Board does not find that an SMC rating is for application. The above grant of TDIU was predicated upon the collective effect of the Veteran’s disabilities, and so for the period from February 8, 2012 to July 19, 2017, there is no one disability ratable at 100 percent independent of the other service-connected disabilities. As for the period from July 19, 2017, the current claim of TDIU arises on a Rice basis from the underlying increased rating claim for the lumbar spine disability, and so there is no TDIU claim presently before the Board that applies to the total disability rating assigned for MDD. In any event, the Board additionally notes that the Veteran has not specifically reported, nor does the record reflect, that he has been rendered housebound. As such, the concerns addressed in Bradley are not present, and the Board needs not further address whether SMC ratings are warranted during the pendency of the appeal. REASONS FOR REMAND Entitlement to service connection for DM II, to include as due to a service-connected disability. The Veteran seeks service-connection for DM II. He vaguely asserts that his DM II was caused by medication provided by VA without further specification as to which medication or how his DM II was affected or caused. Nevertheless, the record suggests a correlation between the Veteran’s DM II and his lumbar spine/nerve medication such that a remand for VA opinion is warranted. In brief, November 2012 treatment medical records document an increase in the Veteran’s blood glucose levels following steroidal injections associated with treatment of the Veteran’s lumbar spine pain. VA treatment records throughout the appeal document repeat steroid injections. Given the suggestion of potential correlation between the Veteran’s blood glucose levels (which arguably if too high or low can impact DM II severity) and the medication used to treat his service-connected disabilities a remand is a warranted to obtain a VA examination. Entitlement to increased ratings for lumbar spine disability and bilateral lower extremity radiculopathy. As indicated above, the Board has restored the Veteran’s 40 percent rating. Nevertheless, he is presumed to be seeking the maximum available benefit therefore the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Such a finding is supported by the Veteran’s initial intent at the time of filing his claim for increase to seek a rating in excess of 40 percent. That said, further development is required. The Veteran was most recently examined in July 2017. This examination does not adequately comply with the Court’s holdings in Correia v. McDonald and Sharp v. Shulkin. See, 28 Vet. App. 158 (2016) and 29 Vet. App. 26 (2017). As to Correia, the examiner did not report the results of range of motion testing for pain on passive motion or document the degree at which pain began upon testing, although objective evidence of pain on passive motion was noted. See, 28 Vet. App. 158 (2016). As to Sharp, the examination does not, despite confirming a history of flare ups, describe the extent of motion loss during flares or repetitive use or provide the extent of motion loss described in terms of degrees. 29 Vet. App. 26 (2017). Given these omissions a remand is warranted for new examination. Regarding radiculopathy of the bilateral lower extremities, the Board notes that these issues are inextricably intertwined with the claim for an increased rating for the lumbar spine remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). As these claims are being remanded, the Board finds that an additional VA examination to determine the current severity and manifestations of the radiculopathy are warranted. Finally, the claims file is negative for treatment medical records dated after 2018, therefore on remand all outstanding records must be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA diabetes examination in order to evaluate the nature and likely etiology of the Veteran’s DM II. The entire claims file must be made available to and be reviewed by the examiner, and the examiner must indicate that the file was reviewed. The examiner must opine as to whether it is it at least as likely as not (a 50 percent probability or higher) that the DM II had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that the DMII is caused or aggravated by one or more service-connected disabilities (as listed in a November 2017 rating decision). In setting forth these opinions, the examiner must specifically consider whether there is a correlation between the Veteran’s DM II and the medication used to treat his service-connected disabilities. Note, November 2012 treatment medical records document an increase in the Veteran’s blood glucose levels following steroidal injections associated with treatment of the Veteran’s lumbar spine pain. VA treatment records throughout the appeal document repeat steroid injections. The examiner should note that the term “aggravated by” refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated the DM II, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 3. Schedule the Veteran for an examination of the current severity of his lumbar spine and radiculopathy disabilities. All symptomatology associated with the low back condition during these time periods should be identified. The examiner must first record the range of range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight bearing exertion. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. Then, after reviewing the Veteran’s complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments of his lumbosacral spine. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service connected lumbosacral spine disorder. Furthermore, in order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), for the entire appeal period, the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limited functional ability during flares or repetitive use, and, if so, the examiner must estimate what the range of motion was during flares or repetitive use. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided The examiner should also comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Moreover, the examiner should also describe in detail the nature and severity of any radiculopathy of the lower extremities. The examiner shall review the entire claims file, to include all lay statements and include a copy of this REMAND in the examination report. All opinions and conclusions must be accompanied by a supporting rationale. C. M. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.