Citation Nr: 20034558 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 14-19 835A DATE: May 18, 2020 ORDER The reduction in rating for service-connected ankylosing spondylitis (“back disability”), effective December 1, 2019, was proper. Entitlement to an increased rating exceeding 20 percent for service-connected ankylosing spondylitis (“back disability”) is denied. FINDINGS OF FACT 1. At the time of the reduction, a 40 percent rating for the Veteran’s back disability had been in effect since April 10, 2019, less than 5 years. 2. At the time of the reduction, the evidence of record revealed the Veteran’s back disability was not of sufficient severity to warrant the 40 percent increase given, as the increase was implemented due to an inaccuracy in a prior VA examination (which was the basis for the increase); therefore, the Veteran had sustainability of symptoms that more closely approximates a 20 percent rating. 3. Throughout the rating period on appeal, the Veteran’s back disability has not manifested to forward flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for the reduction in rating for service-connected ankylosing spondylitis (“back disability”) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5240. 2. The criteria for entitlement to an increased rating exceeding 20 percent for service-connected ankylosing spondylitis (“back disability”) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5240. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2001 to June 2001, and from October 2004 to January 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This matter was previously before the Board in May 2018, where it was remanded for further development. The Board notes that there was substantial compliance with its May 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Whether the reduction in rating for service-connected ankylosing spondylitis was proper. There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation of a disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the Agency of Original Jurisdiction (AOJ) must issue a rating decision proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The AOJ must also notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level, and the beneficiary must be notified as to the right to a predetermination hearing. Id. Additionally, the effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e), (i). For ratings that have been in effect for five years or more, VA regulations contain certain protections in order to provide for the stabilization of assigned disability evaluations. 38 C.F.R. § 3.344(a)-(c). In this case, the relevant evaluation was in effect for less than 5 years, and the aforementioned regulations are inapplicable. However so, regardless of whether the 5-year threshold is met, a VA rating decision must be based upon review of the entire history of the Veteran’s disability, reconciling any contrary findings into a consistent picture. See 38 C.F.R. § 4.2. VA must then consider whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting any such change are based upon thorough examinations. In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). To warrant reduction in a rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b) as required. See Brown, 5 Vet. App. At 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In determining whether a reduction was proper, the Board must focus upon evidence available to the AOJ 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. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. As an initial matter, the Board notes that the AOJ issued a rating decision in July 2019, which proposed to reduce the Veteran’s rating for his service-connected back disability from 40 percent to 20 percent. In July 2019, the AOJ sent the Veteran an accompanying notice letter informing him of the proposal to reduce the rating assigned, and his right to a personal hearing. Additionally, the Veteran was provided with the reasons for the proposed reduction, and informed of the requisite 60-day time period for receipt of additional evidence to support the continuance of his rating, otherwise the rating would be reduced on the first day of the third month following notice of the final decision. Based upon this, the Board finds that VA has complied with the notice procedures under 38 C.F.R. § 3.105(e). For the basis of the reduction of the evaluation for the Veteran’s back disability, the AOJ relied upon the May 2019 VA medical opinion, where the examiner opined that the Veteran does not have favorable ankylosis of the entire thoracolumbar spine, as incorrectly noted in the Veteran’s April 2019 VA examination. In October 2019, the AOJ finalized the proposed reduction to a 20 percent rating, effective December 1, 2019. The Board notes that the record reflects that the Veteran did not submit any evidence to support a continuation of a rating higher than a 20 percent disability level. Based on the evidence of record, the Board finds that the reduction of the Veteran’s rating for his back disability was proper. The record reflects that the Veteran’s condition, originally rated based upon the June 2012 VA examination, revealed symptoms that more closely approximated a 20 percent evaluation based on a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Subsequent review of the claims file reveals additional evidence of a September 2016 VA examination that reflects back disability symptoms to continually support a 20 percent evaluation. Nevertheless, the Board notes that in an April 2019 VA examination, the Veteran’s back disability symptoms reflected a worsening commensurate of a 40 percent rating based upon a showing of favorable ankylosis of the entire thoracolumbar spine; which was the sole basis for granting the Veteran an increased rating of 40 percent in the May 2019 rating decision. However, after this grant, the VA issued a medical opinion in May 2019 from the same April 2019 VA examiner, regarding conflicting evidence within the April 2019 VA examination; the examiner opined that he incorrectly notated that the Veteran had ankylosis of the entire thoracolumbar spine, and corrected his answer from “yes” to “no.” Certainly, as of the period beginning December 1, 2019, the Veteran’s back disability symptoms have not reflected an increase in severity to warrant the increased evaluation of 40 percent. Rather, the record reflects sustainability of symptoms that more closely approximates a 20 percent rating. Therefore, based on the above, the Board concludes that the material and probative evidence of record supports that the reduction was proper. Accordingly, the reduction of the Veteran’s service-connected back disability to a 20 percent rating, effective December 1, 2019, is warranted. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). The appeal is denied. 2. Entitlement to an increased rating exceeding 20 percent for service-connected ankylosing spondylitis (“back disability”). Service connection for the Veteran’s back disability was awarded in a June 2012 rating decision with a 20 percent rating assigned, effective August 19, 2011 (date of claim to reopen). Subsequently, the Veteran was awarded an increased rating of 40 percent in a May 2019 rating decision; however, as discussed above, this rating was properly reduced to a 20 percent rating in an October 2019 rating decision and affirmed in this Board decision. However, the Veteran contends that his back disability warrants an increased rating exceeding 20 percent for service-connected back disability, as his symptoms have worsened. Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 37–38; see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in §§ 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria.”). The Veteran is currently rated as 20 percent disabled under appropriate DC 5240. Under DC 5240, a 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion is 240 degrees. 38 C.F.R. § 4.71a, DC 5237-5243 Note (2). VA and private treatment records throughout the appeal period reflect complaints and treatment for low back pain; with notated decreased range of motion, painful movement, and restricted flexion, extension, and rotation. In October 2007, the Veteran underwent a private examination, where the examiner found that the Veteran’s “[f]lexion is about 50% of normal, as is extension. Rotation is also diminished 50%. Lateral flexion is severely diminished.” See Medical Treatment Record – Non-Government Facility, October 2007. In a June 2012 VA examination to assess the severity of the Veteran’s back disability, the examiner noted the Veteran’s reports of flare-ups, as described as pain and stiffness. Upon examination, the Veteran’s range of motion testing resulted in forward flexion of 0 to 50 degrees (with objective evidence of painful motion at the same degree point), extension of 0 to 15 degrees (with objective evidence of painful motion at the same degree point), right and left lateral flexion of 0 to 20 degrees, each (with objective evidence of painful motion at the same degree point, each), right lateral rotation of 0 to 5 degrees (with objective evidence of painful motion at 10 degrees), and left lateral rotation of 0 to 15 (with objective evidence of painful motion at 10 degrees). The combined total range of motion of 125 degrees. After repetitive testing, the Veteran’s range of motion testing resulted in forward flexion of 0 to 50 degrees, extension of 0 to 20 degrees, left and right lateral flexion of 0 to 15 degrees, each, and left and right lateral rotation of 0 to 20 degrees, each. There was functional loss/impairment, as described as less movement than normal and pain on movement; with localized tenderness or pain to palpation. Additionally, there was guarding and/or muscle spasm present, but it did not result in abnormal gait or spinal contour. In a September 2016 VA examination to reassess the severity of the Veteran’s back disability, the examiner noted the Veteran’s reports of flare-ups, as described as low back pain, with no reports of functional loss/impairment. Upon examination, the Veteran’s range of motion testing resulted in forward flexion of 0 to 50 degrees, extension of 0 to 10 degrees, right and left lateral flexion of 0 to 20 degrees, each, and right and left lateral rotation of 0 to 30 degrees, each. Range of motion itself did not contribute to functional loss; however, pain was noted on examination, but did not cause/result in functional loss. There was no evidence of pain with weight-bearing, or localized tenderness or pain on palpation. After repetitive testing, there was no additional loss of function or range of motion; however, there was evidence of muscle spasm, but it did not result in abnormal gait or abnormal spinal contour. No ankylosis was shown. In the report of an April 2019 VA examination to reassess the severity of the Veteran’s back disability, the examiner noted the Veteran’s reports of flare-ups, as described as increased pain and decreased range of motion occurring 6 times per year and lasting 1 to 2 weeks in duration; and reports of functional loss/impairment, as described as decrease in range of motion and function by 30 percent when back flare-ups occur. Upon examination, the Veteran’s range of motion testing resulted in forward flexion of 0 to 60 degrees, extension of 0 to 20 degrees, right and left lateral flexion of 0 to 20 degrees, each, and right and left lateral rotation of 0 to 30 degrees, each; with range of motion itself contributing to a functional loss, as described as decreased ability to bend, kneel, or arise from bed. Pain was noted on examination, but did not cause/result in functional loss. There was no evidence of pain with weight-bearing; however, there was localized tenderness or pain on palpation, as described as discomfort to palpation neck and low back. After repetitive testing, there was no additional loss of function or range of motion, nor did any pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use. However, pain and fatigue did significantly limit functional ability with flare-ups, as described in terms of range of motion as forward flexion of 0 to 45 degrees, extension of 0 to 20 degrees, right and left lateral flexion of 0 to 20 degrees, each, and right and left lateral rotation of 0 to 30 degrees, each. There was no evidence of guarding or muscle spasms, but there was noted favorable ankylosis of the entire thoracolumbar spine. In May 2019, the VA issued a medical opinion from the April 2019 VA examiner regarding conflicting evidence within the April 2019 VA examination, in which the examiner opined that he incorrectly notated that the Veteran had ankylosis of the entire thoracolumbar spine, and corrected his answer from “yes” to “no.” Considering the foregoing, to include consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, the Board finds that an increased rating exceeding 20 percent is not warranted for the Veteran’s back disability. The evidence of record during the appeal period is not sufficient to meet the criteria under DC 5240 for an evaluation higher than 20 percent currently assigned, as the Veteran’s severity has not increased beyond pain. The range of motion of the Veteran’s back at worst has been documented by forward flexion of 45 degrees, which more closely proximates a 20 percent rating under this evaluation. Additionally, the Board acknowledges the Veteran’s request that his disability be rated under DC 5009 (DC 5002) for evaluation under rheumatoid arthritis. However, the Board notes that the Veteran is already assigned a 20 percent rating for limitation of motion of the thoracolumbar spine. In this respect, DC 5002 directs that the rating for the active process (if applicable) will not be combined with residual ratings for limitation of motion or ankylosis and that the higher evaluation must be assigned. Here, the evidence does not clearly reflect that the Veteran is in active process, and, even if he was, the evidence does not show that the Veteran meets the criteria for a rating in excess of 20 percent under DC 5002. There is also no evidence of physician-prescribed bed rest, as would warrant consideration for intervertebral disc syndrome under DC 5243. Therefore, the Board finds that an increased rating exceeding 20 percent for the service-connected back disability is not warranted, and the claim is denied. This claim raises no issues in addition to the underlying rating claim. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find the evidence is of such approximate balance to warrant its application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.