Citation Nr: 20033052 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 17-33 306 DATE: May 12, 2020 ORDER The reduction to 20 percent being improper, restoration of a 40 percent rating for service-connected lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) (lumbar spine disability) is granted, effective January 17, 2014. REMANDED Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) (lumbar spine disability) is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. In an April 2014 rating decision, the RO reduced the rating for the Veteran’s service-connected lumbar spine disability from 40 to 20 percent disability from January 17, 2014. The 40 percent rating had been in effect for less than five years. 2. Improvement of the Veteran’s spine disability to include under conditions of ordinary life is not shown by a preponderance of the evidence. CONCLUSION OF LAW The reduction in the rating assigned for a lumbar spine disability from 40 to 20 percent, effective January 17, 2014, was not proper; restoration of the 40 percent rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5237, 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from March 1959 to March 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the lumbar spine disability rating from 40 percent to 20 percent, effective January 17, 2014. The Veteran filed a notice of disagreement (NOD) in April 2014 and specified his appeal to the reduction of the disability rating and requested an increased rating. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) in October 2016. A copy of the transcript has been reviewed and associated with the claims file. These matters were before the Board in April 2018, at which time they were remanded for additional development. Propriety of the reduction of the disability rating assigned for a lumbar spine disability from 40 percent to 20 percent disabling Specific legal standards govern whether the reduction in the rating for the Veteran’s lumbar spine disability was justified by the evidence. A veteran’s disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Where a disability rating has been continued for at least five years at the same level, under 38 C.F.R. § 3.344, if there have occurred changes in essential medical findings or diagnosis, that case is to be reviewed and adjudicated so as to produce the greatest degree of stability of disability evaluation. In determining the propriety of a previous rating, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability. 38 C.F.R. § 3.344(a). Likewise, in such cases, provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures. 38 C.F.R. § 3.344(b). In this case, the 40 percent rating assigned to the Veteran’s service-connected lumbar spine disability was in effect from July 15, 2010, to January 17, 2014, which was less than five years. Therefore, the provisions of 38 C.F.R. §§ 3.344(a) and (b), which govern the reduction of protected ratings in effect for five years or more, do not apply in this case. Accordingly, reexaminations disclosing improvement, physical or mental, in these cases will warrant reduction in rating. 38 C.F.R. § 3.344(c). The determination in a reduction rating case must include the proper application as to the standard of proof. In rating reduction cases, VA must establish, by a preponderance of evidence, that the reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, 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. Brown, 5 Vet. App. at 421. There must be an actual improvement in the disability and not just a failure to meet the requirements of a rating under the currently assigned diagnostic code. In sum, in any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510 516-17 (2014) (citing Brown, 5 Vet. App. at 421; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13) When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, in a September 2012 rating decision, the Veteran was assigned a 40 percent disability rating for his lumbar spine disability based on a September 2012 VA examination. At that time, the VA examiner assessed the Veteran with lumbar degenerative changes with IVDS. The Veteran reported flare-ups of pain. Range of motion testing revealed forward flexion to 25 degrees with painful motion at 10 degrees and extension to 25 degrees. His guarding or muscle spasm of the thoracolumbar spine resulted in an abnormal gait. The Veteran had IVDS with less than one week of incapacitating episodes over the prior 12 months. He consistently ambulated with a cane and occasionally used a walker. His lumbar spine disability impacted his ability to work by limiting his standing and walking for less than two hours at a time. The Veteran was afforded a VA examination in January 2014, at which time he was assessed with degenerative arthritis of the spine with IVDS. He reported flare-ups of pain. Range of motion testing revealed forward flexion to 70 degrees and extension to 20 degrees. He was unable to perform repetitive use testing due to the discomfort. He ambulated with a cane. His lumbar spine disability impacted his ability to work due to his inability to stand for long periods and difficulty lifting and bending. After a review of the evidence, the Board finds that the January 2014 examination was insufficient and, in turn, should not have been relied on to reduce the Veteran’s disability rating for his lumbar spine disability. In this regard, the January 2014 examiner failed to perform passive ROM and weight-bearing testing as required by VA regulations. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158. Furthermore, although the Veteran complained of flare-ups of back pain, the examiner did not discuss or attempt to indicate any additional loss of motion during a flare-up as required by a recent decision issued by CAVC. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the Board finds that the rating reduction was not based on a thorough and adequate examination. In any event, deficiencies in the examination aside, it is noted that repetitive motion testing could not be performed at the 2014 examination. Therefore, even though the initial range of motion testing was better than at the previous examination, it would appear that there was no improvement under the ordinary conditions of life if the Veteran could not even engage in repeated movements at the examination itself. Moreover, during both the September 2012 and January 2014 examinations, the Veteran indicated that his lumbar spine disability impacted his ability to work due to his inability to stand for long periods of time. Furthermore, the Veteran reported the same physical limitations during the September 2012 and January 2014 examinations, including the requirement of a cane to ambulate. The Board again acknowledges that the ROM testing differed between the September 2012 and January 2014 examinations, however, there was no evidence of an actual improvement in his lumbar spine disability under ordinary conditions of life and work. As noted above, VA must establish, by a preponderance of the evidence, that the reduction was warranted in accordance with 38 C.F.R. § 3.344. Brown, 5 Vet. App. at 421. The Board finds that this burden has not been carried by VA because the findings in the 2012 versus 2014 examination reports do not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. Accordingly, restoration of the 40 percent rating for his service-connected lumbar spine disability, effective January 17, 2014, is warranted. 38 U.S.C. § 1155; 38 C.F.R. § 3.105. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) (lumbar spine disability) is remanded; 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Pursuant to the Board’s April 2014 remand instructions, a VA examination was performed in November 2019. However, the Board finds that this examination is inadequate. In this regard, while active range of motion testing was performed, the examiner did not conduct and include findings for range of motion testing of his lumbar spine in weight bearing and passive motion in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner simply indicated that passive range of motion testing could not be performed without any attempt to elicit this information or estimates from the Veteran’s treatment records. Furthermore, throughout the rating period on appeal, i.e., during the May 2017 VA examination, the Veteran reported flare-ups of pain. However, the examiner did not estimate motion loss in terms of degrees during periods of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the Board finds that new VA examinations are warranted in compliance with Correia and Sharp. Id. If any testing is unable to be performed, the examiner must attempt to elicit this information from the Veteran’s treatment records. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from October 2019 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability and radiculopathy. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted. If possible, the examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The 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 cannot be given. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If the examiner provides an estimate, he or she may indicate their level of confidence in such estimate on a scale of 1 to 5, with 1 being least confident and 5 being the most confident. The examiner should also evaluate Intervertebral Disc Syndrome (IVDS) and indicate if the Veteran has had any incapacitating episodes throughout the rating period on appeal (from 2014) and if so, the duration and frequency. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional incapacitating episodes. The examiner should report and discuss the severity of the Veteran’s service-connected radiculopathy. The affected nerves should be identified and the impairment for radiculopathy should be characterized as mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis. Flare-ups have been reported throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional impairment. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.