Citation Nr: 20038667 Decision Date: 06/05/20 Archive Date: 06/05/20 DOCKET NO. 17-15 887 DATE: June 5, 2020 ORDER The reduction from a disability evaluation of 20 percent to 10 percent for service-connected degenerative joint disease (DJD) of the spine was not proper; restoration of the 20 percent evaluation is granted, effective September 1, 2015. REMANDED Entitlement to an evaluation in excess of 20 percent for DJD of the spine is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a November 2014 rating action, the RO proposed to reduce the rating for the service-connected DJD of the spine from 20 percent to 10 percent disabling, and the Veteran was informed of the proposal in accordance with 38 C.F.R. § 3.105(e) by a letter dated in November 2014. 2. By rating action dated in June 2015, the RO implemented a reduction to 10 percent for service-connected DJD of the spine, effective September 1, 2015. Notice of the reduction was sent to the Veteran in July 2015. 3. A 20 percent evaluation for DJD of the spine had been in effect for less than five years at the time of the rating decision that decreased the evaluation for that disability to 10 percent. 4. Evidence available at the time of the rating reduction did not reflect improvement in the service-connected DJD of the spine; there was no clear showing that symptoms had improved such that he no longer met the criteria for a 20 percent rating and evidence does not indicate an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the evaluation for DJD of the spine from 20 percent to 10 percent, effective September 1, 2015, was not proper. 38 U.S.C. §§ 1155, 5103, 5107, 5112; 38 C.F.R. § 3.105, 3.344, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Propriety of a reduction from a disability evaluation of 20 percent to 10 percent for service-connected degenerative joint disease (DJD) of the spine, effective from September 2, 2015. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, it must be determined not only that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In essence, the law requires that the service-connected disability must have demonstrated improvement in order for an assigned rating to be reduced. In order for a rating reduction to be properly effectuated, there must be appropriate notice of the proposed reduction, and the reduction must be supported by the evidence of record. As noted above, 38 C.F.R. § 3.105(e) requires the issuance of a rating decision proposing the reduction or discontinuance and setting out all material facts and reasons underlying the proposal. The appellant must be notified at his last address of record and be provided 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. In this case, the Veteran was informed of the proposed reduction in a November 2014 letter. In a November 2014 rating decision, he was provided the material facts, and the rationale for the proposed rating reduction was explained. The Veteran was further informed that he could present evidence and that he was entitled to a hearing. He was afforded 60 days to respond. Thereafter, the RO promulgated a rating decision in June 2015 implementing the proposed reduction, effective September 1, 2015. Based on this history, the Board finds that the Veteran was properly notified of the proposed rating reductions, in conformity with the provisions of 38 C.F.R. § 3.105(e). As to these issues, then, the RO properly applied the regulations concerning the procedure for notification of reductions in ratings. The question that remains is whether the RO correctly applied the substantive law and regulations regarding the reduction. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Further, the assignment of a particular Diagnostic Code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a Diagnostic Code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Under Diagnostic Code 5242 degenerative arthritis of the spine (see also, Diagnostic Code 5003), is evaluated under the following general rating formula for diseases and injuries of the spine: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10% evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20% rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30% evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40% rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50% evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100% rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In a September 2012 rating decision, the RO granted service connection for DJD of the spine, with an initial 20 percent evaluation, effective August 30, 2011, the date VA received the claim for service connection of this disability. At the time of the September 2012 rating, the evidence included an August 2012 VA examination of the spine. During this examination, the Veteran reported that he could not lift more than 25 pounds, sit or stand for more than 2 to 3 hours, or walk more than 200 yards without pain. He related that he had to stretch is back every few hours to avoid spasms and pain. He took ibuprofen for pain. Physical examination revealed that the Veteran had guarding or muscle spasm severe enough to result in an abnormal gait. Range of motion was largely normal. Based upon the findings of guarding/muscle spasm resulting in an abnormal gait, the RO assigned a 20 percent evaluation. The Veteran filed a claim for an increased evaluation of DJD of the spine in October 2013. The RO proposed reduction, as outlined above. In November 2014, the Veteran was afforded a VA examination. The report thereof documents a review of the claims file, including the September 2012 VA examination. At the examination, the Veteran related that he had back pain about 3 to 4 times per week, lasting all day and night, even with pain medications. He related that the pain sometimes became so severe that he had to crawl to the shower. He stated that these severe episodes occurred about once per month. He did a little walking for exercise, sometimes speed walking. He could not run or do sit-ups or pushups. He related that bending down (i.e. flexion) was not always difficult but was difficult “when the disc slip[ped] out.” He reported flare-ups when he had to lift anything over 25 pounds and move quickly. He related that he was able to drive, but it took him about 30 seconds to be able to walk after driving. With consideration of repetitive use testing, flexion was to 80 degrees. Extension was to 15 degrees. Right lateral flexion was to 20 degrees. Left lateral flexion was to 20 degrees. Right lateral rotation was to 30 degrees or greater. Left lateral rotation was to 30 degrees or greater. There was localized tenderness/pain to palpation of the lower lumbar area. The Veteran did not have muscle spasm or guarding of the thoracolumbar spine at that time. The Veteran regularly used a back brace. Based upon this examination, the RO proposed and effectuated the reduction. In February 2017, the Veteran was afforded another VA examination. The report notes that the claims file was reviewed. The Veteran was then working full time, in a job that required 70 percent standing and 30 percent sitting. He related daily chronic low back pain at a level of 6/10, increasing to 8 or 9/10. The Veteran was unable to bend forwards completely, could not lift objects greater than 20 pounds and could not run or jump. Flexion was to 70 degrees. Extension was to 20 degrees. Right lateral flexion was to 20 degrees. Left lateral flexion was to 20 degrees. Right and left lateral rotation were each to 20 degrees. There was no additional limitation of motion following repetitive use. There was evidence of pain with weight bearing. Examination showed mild tenderness on palpation of the lumbar spine and bilateral lumbar paraspinal muscles. There was no guarding. While there was muscle spasm, it did not result in an abnormal gait or abnormal spinal contour. The Veteran wore a brace occasionally. The disability impacted the Veteran’s ability to work to the extent that he could not work in a physically demanding occupation. Having considered the evidence of record in this case, the Board finds that the reduction from 20 percent to 10 percent was not proper. In this regard, the findings of the November 2014 and February 2017 examinations formed the basis of the RO's decision to reduce the Veteran's disability rating. Critically, these VA examination reports do not address whether the Veteran's symptomatology had improved since the August 2012 VA examination, and additionally failed to specify whether that improvement actually reflected improvement in his ability to function under the ordinary conditions of life and work. The Board recognizes that, in implementing the proposed rating reduction, the RO weighed the evidence of record, which indicated that the Veteran's service-connected DJD of the spine no longer met the criteria for a 20 percent rating under Diagnostic Code 5242. However, review of the June 2015 rating decision and the March 2017 Statement of the Case reveals that the RO failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life. See 38 C.F.R. §§ 4.10, 4.13. The RO's failure to make such a determination in this case renders the reduction improper. Moreover, the evidence does not show improvement under the ordinary conditions of life based on the Veteran's reports of flare-ups, which result in an inability to bend, or sit or stand for extended periods of time. It is salient that the Veteran has described severe impairment during these episodes. Thus, the reduction from 20 percent to 10 percent for DJD of the spine is void. Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath, 1 Vet. App. at 595. 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 ugh 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 he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, supra; Kitchens, 7 Vet. App. 320 (1995). The RO's findings in this case that the Veteran's DJD of the spine no longer approximated the criteria for a 20 percent rating are not sufficient to sustain a finding that the reduction was proper. Accordingly, the action to reduce the rating is void, and the 20 percent evaluation for DJD of the spine is restored as though the reduction had not occurred. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent for DJD of the spine is remanded. In February 2020, the Veteran was afforded a hearing before the Board. At that time, the Veteran’s attorney asserted that the February 2017 VA examination was stale and that the Veteran’s disability had worsened to the point that he was considering quitting his job. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). As the Veteran’s assertions indicate possible worsening, he should be afforded a new VA examination. 2. Entitlement to a TDIU is remanded. At his February 2020 Board hearing, the Veteran raised entitlement to a TDIU in the context of his service-connected DJD of the spine. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) that a TDIU claim is part of an increased rating claim when such claim is raised by the record. Accordingly, the issue of entitlement to a TDIU is properly before the Board. The Veteran’s claim for a TDIU is inextricably intertwined with the claim remanded herein. Therefore, a decision on the claim for entitlement to a TDIU, will be deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected DJD of the spine. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should specifically state the degree of disability present in the lumbar spine, and his current range of motion in this spinal segment and the presence or absence of unfavorable or favorable ankylosis. The extent of any weakened movement, excess fatigability and pain on use, should be described. To the extent possible, the functional impairment due to weakened movement, excess fatigability, and pain on use should be assessed in terms of additional degrees of limitation of motion. Range of motion studies should be conducted. The examiner is asked to elicit from the Veteran a complete history of any flare-ups of his disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the disability. The examiner should describe the additional loss, to include in degrees, if possible, or sufficiently explain why any additional functional loss cannot be described or quantified. The examiner should also provide information concerning the functional impairment resulting from the disability that may affect his ability to function and perform tasks in a work setting. All opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.