Citation Nr: 21000259 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-41 147 DATE: January 4, 2021 ORDER The claim of whether the supplemental issues submitted June 19, 2015 to be included in December 18, 2014 disagreement are timely has been withdrawn. Entitlement to service connection for joint and muscle pain due to an undiagnosed Gulf War illness has been withdrawn. Entitlement to service connection for calcaneal spur of the left ankle, claimed as ankle pain and previously claimed as soreness has been withdrawn. Entitlement to service connection for coronary artery disease, claimed as cardiac issues as due to an undiagnosed Gulf War illness has been withdrawn. Entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity, previously shown as peripheral neuropathy has been withdrawn. Entitlement to a rating higher than 10 percent for radiculopathy of the left lower extremity, previously shown as peripheral neuropathy has been withdrawn. Restoration of the 40 percent rating for degenerative disc disease of the lumbosacral spine, status post left microdiscectomy of L5-S1 and bilateral L-4 laminectomy (lumbar spine disability) is granted. Entitlement to a rating higher than 40 percent for lumbar spine disability is denied. Entitlement to an effective date earlier than April 9, 2013 for the grant of service connection for degenerative joint disease of the right hip is denied. FINDINGS OF FACT 1. At the November 2019 videoconference hearing, the Veteran expressed his desire to withdraw his appeals as to the claims for whether the supplemental issues submitted June 19, 2015 to be included in December 18, 2014 disagreement are timely, and entitlement to service connection for joint and muscle pain due to an undiagnosed Gulf War illness, calcaneal spur of the left ankle, claimed as ankle pain and previously claimed as soreness, coronary artery disease, claimed as cardiac issues as due to an undiagnosed Gulf War illness, and entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity, previously shown as peripheral neuropathy, and a rating higher than 10 percent for radiculopathy of the left lower extremity, previously shown as peripheral neuropathy. 2. Improvement in the Veteran’s lumbar spine shown on examination did not reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 3. The Veteran’s lumbar spine disability is not demonstrated by ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal 4. The Veteran’s request to reopen the service connection claim for a right hip disorder was received at the RO on April 9, 2013; there is nothing in the record received prior to April 9, 2013, which could be construed as an informal or formal claim to reopen a claim of service connection for a right hip disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s claims for whether the supplemental issues submitted June 19, 2015 to be included in December 18, 2014 disagreement are timely, and entitlement to service connection for joint and muscle pain due to an undiagnosed Gulf War illness, calcaneal spur of the left ankle, claimed as ankle pain and previously claimed as soreness, coronary artery disease, claimed as cardiac issues as due to an undiagnosed Gulf War illness, and entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity, previously shown as peripheral neuropathy, and a rating higher than 10 percent for radiculopathy of the left lower extremity, previously shown as peripheral neuropathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for restoration of a 40 percent rating for lumbar spine disability from November 27, 2013 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.71a, Diagnostic Codes (Codes) 5237, 5243. 3. The criteria for entitlement to a rating higher than 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71(a), Codes 5237, 5243. 4. The criteria for entitlement to an effective date earlier than April 9, 2013 for the grant of service connection for degenerative joint disease of the right hip have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1982 to October 2002 when he retired. These matters are before the Board of Veterans’ Appeals (Board) from January and February 2014 rating decisions and a June 2015 letter regarding an untimely notice of disagreement, by a Department of Veterans Affairs (VA) Regional Office (RO). In an interim August 2016 rating decision, the Veteran was awarded an increased rating to 40 percent for degenerative disc disease of the lumbosacral spine, post left microdiscectomy of L5-S1 and bilateral L-4 laminectomy, effective August 13, 2015. The Veteran testified at a Board videoconference hearing in November 2019. At the hearing, the Veteran waived RO consideration of additional evidence submitted following the hearing. Withdrawals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. At the November 2019 videoconference hearing, the Veteran expressed his intent to withdraw his appeals as to the claims of whether the supplemental issues submitted June 19, 2015 to be included in December 18, 2014 disagreement are timely, and entitlement to service connection for joint and muscle pain due to an undiagnosed Gulf War illness, calcaneal spur of the left ankle, claimed as ankle pain and previously claimed as soreness, coronary artery disease, claimed as cardiac issues as due to an undiagnosed Gulf War illness, and entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity, previously shown as peripheral neuropathy, and a rating higher than 10 percent for radiculopathy of the left lower extremity, previously shown as peripheral neuropathy. The Board finds the Veteran's expression at the hearing qualifies as a valid withdrawal of the issues. Since the Veteran has withdrawn the claims, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeals as to the issues, and they are dismissed. Rating Reduction The Veteran seeks restoration of a 40 percent rating for his service-connected lumbar spine disability from November 27, 2013. For the reasons that follow, the Board finds that the rating reduction was improper, and restoration of the 40 percent rating is warranted. The reduction of a rating has certain procedural requirements that must be followed by the RO if the lower evaluation results in a reduction or discontinuance of compensation payments being made. 38 C.F.R. § 3.105(e). Here, a rating action proposing such reduction was not warranted because the rating reduction did not result in a reduction or discontinuance of current compensation payments. The Veteran has not alleged otherwise. 38 C.F.R. § 3.105(e). Reducing a rating also brings concurrent substantive requirements that must be followed. When a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making this determination, 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. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. 38 C.F.R. § 3.344 (a), (b); see 38 C.F.R. § 3.343. The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain 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 not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Historically, the Veteran underwent a VA-contract spine examination in April 2011. At the time of the examination, he reported having back pain that radiated down into his right leg. He stated that he suffered from 5 to 6 ten-minute flare-ups per day. On physical examination, he ambulated with a normal gait, and there was no evidence of muscle spasm, guarding, localized tenderness, or ankylosis. Range of motion testing showed forward flexion to 30 degrees, extension to 20 degrees, left and right lateral flexion each to 30 degrees each, left rotation to 20 degrees, and right rotation to 30 degrees. There was evidence of painful motion during this testing. Repetitive movement of the thoracolumbar spine times 3 did not decrease ranges of motion. Muscle strength was normal. Sensation was intact to sacral segments. Reflexes were normal. The diagnosis was degenerative disc disease of the thoracolumbar spine. As forward flexion of the thoracolumbar spine was limited to 30 degrees during the examination, a rating of 40 percent was assigned. During a VA back conditions examination in November 2013, the Veteran reported having chronic and worsening low back pain and has had multiple facet/epidural injections, microdissection and laminectomy of his lower back. At that time, he was still under pain management care. He complained of frequent flare-ups of low back pain and stated the “pain makes any movement difficult.” On range of motion testing forward flexion was to 60 degrees, with objective evidence of painful motion at 50 degrees. He had normal extension at 30 degrees. The Veteran had functional loss functional impairment and/or additional limitation of range of motion of his low back after repetitive use with contributing factors of weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing and lack of endurance. He had pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups; and use of the affected joint over a period of time significantly limited functional ability during flare-ups. He complained of tenderness to palpation of his paraspinal muscles of the lumbar spine during the examination. He had muscle spasm that did not result in abnormal gait or abnormal spinal contour. He had guarding of his lumbar spine that resulted in abnormal gait or abnormal spinal contour. His muscle strength was normal, and he did not have muscle atrophy. There was no ankylosis of the spine. The examination report reveals he had intervertebral disc syndrome (IVDS) of the thoracolumbar spine with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. He had an MRI [magnetic resonance imaging] consistent with degenerative disc disease. The diagnosis was lumbago with radiculopathy. The Veteran stated his low back pain affects his ability to work in that he is unable to perform prolonged standing, sitting and/or walking. On review, the Board finds that a reduction of the rating from 40 percent to 20 percent was not proper. The November 2013 VA examination report clearly shows improvement in range of motion testing. Forward flexion went from being limited to 30 degrees on the April 2011 VA-contract examination report, which corresponds to a 40 percent rating, to only limited to 60 degrees on the November 2013 VA examination report, which corresponds to a 20 percent rating. The Veteran's functional impairment, however, showed no appreciable improvement. He continued to report having back pain; he also reported weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups. The Veteran stated that his low back pain affected his ability to work in that he was unable to perform prolonged standing, sitting and/or walking. The nature and severity of such limitations was generally continuous throughout the period where the Veteran was rated 40 percent through the date of the rating reduction. Consequently, the improvement in objective range of motion test results, which served as the basis for the reduction, did not actually reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Thus, the reduction in the rating from 40 percent to 20 percent was not proper, and the 40 percent rating must be restored effective November 27, 2013. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent rating is warranted for 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 rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankyloses of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Code 5237, Note (1). Under the Formula for Rating IVDS, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, Note (1). The Board notes that, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). Entitlement to a rating higher than 40 percent for lumbar spine disability The Veteran’s 40 percent rating for lumbar spine disability has been restored from November 27, 2013. His service-connected lumbar spine disability is rated 40 percent under Code 5243. He contends his lumbar spine disability is more severe than the 40 percent assigned. In order for the Veteran to warrant the next higher 50 percent rating for his lumbar spine disability, there must be evidence of record showing he has unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. There is no medical evidence of record of either. Review of the medical evidence reveals the Veteran underwent a VA back conditions examination in November 2013. During the examination, he reported having chronic and worsening low back pain and has had multiple facet/epidural injections, microdissection and laminectomy of his lower back. At that time, he was still under pain management care. He complained of frequent flare-ups of low back pain and stated the “pain makes any movement difficult.” On range of motion testing forward flexion was to 60 degrees, with objective evidence of painful motion at 50 degrees. He had normal extension at 30 degrees. The Veteran had functional loss functional impairment and/or additional limitation of range of motion of his low back after repetitive use with contributing factors of weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing and lack of endurance. He had pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups; and use of the affected joint over a period of time significantly limited functional ability during flare-ups. He complained of tenderness to palpation of his paraspinal muscles of the lumbar spine during the examination. He had muscle spasm that did not result in abnormal gait or abnormal spinal contour. He had guarding of his lumbar spine that resulted in abnormal gait or abnormal spinal contour. His muscle strength was normal, and he did not have muscle atrophy. There was no ankylosis of the spine. The examination report reveals he had IVDS of the thoracolumbar spine with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. He had an MRI consistent with degenerative disc disease. The diagnosis was lumbago with radiculopathy. The Veteran stated his low back pain affects his ability to work in that he is unable to perform prolonged standing, sitting and/or walking. The evidence also includes an August 2015 orthopedic evaluation and opinion from Dr. R.A.R., chiropractor. While the examination by Dr. R.A.R. shows reduction in range of motion to 20 degrees in flexion, as well as reduced motion in all other ranges, there are no findings of unfavorable ankylosis of the Veteran’s thoracolumbar spine. Moreover, in August 2020, the Veteran underwent a VA-contract back conditions examination. On examination of the Veteran’s thoracolumbar spine, diagnoses of degenerative disc disease of the lumbosacral spine, status post left microdiscectomy of L5-S1; bilateral L-4 laminectomy; and bilateral lower extremity lumbar radiculopathy were rendered. The Veteran reported having daily flare-ups of the back of moderate to severe severity. He was unable to sit for long, lift, or walk without increasing pain. On range of motion testing, forward flexion was to 25 degrees and extension was to 15 degrees. All other ranges of motion were each to 30 degrees. There was no additional loss of function or range of motion after 3 repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Pain, fatigue, weakness and lack of endurance did however significantly limit functional ability with flare-ups. There was no guarding, muscle spasm, muscle atrophy, or ankylosis of the lumbar spine shown on examination. Nor did the Veteran have IVDS or the lumbar spine. The Board has considered whether a higher rating is warranted under the provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, and finds it is not. Although pain, fatigue, weakness, and lack of endurance significantly limit functional ability with flare-ups, such changes did not raise the Veteran’s lumbar spine disability to the next higher level of disability during the stated period. Therefore, based on findings from the November 2013 VA examination, Dr. R.A.R.’s August 2015 evaluation and the August 2020 VA-contract examination, the Board finds that the Veteran’s service-connected lumbar spine disability symptoms most nearly approximate a 40 percent rating under Code 5237. The claim for an increased rating higher than 40 percent for lumbar spine disability is denied. As noted, the Veteran is already receiving separate ratings for radiculopathy associated with his service-connected lumbar spine disability. Additionally, the Board finds that the issue of entitlement to a total disability evaluation due to individual unemployability has not been raised by the Veteran or by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The record indicates the Veteran is self-employed and at no point during the pendency of this appeal has he alleged his service-connected lumbar spine disability prevents him from obtaining and maintaining gainful employment. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to an effective date earlier than April 9, 2013 for the grant of service connection for degenerative joint disease of the right hip (right hip disorder) The Veteran seeks an effective date earlier than April 9, 2013 for the grant of service connection for degenerative joint disease of the right hip. He contends that the effective date of the award should be January 13, 2003, the date he filed an initial claim. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of service connection will be the day following the date of separation from service if the Veteran filed a claim within one year after service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations regarding claims. The amendment requires claims to be filed on standard VA forms, eliminates constructive receipt of claims, and eliminates informal claims. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Here, the Veteran filed his informal claim of service connection for a right hip disability well before March 24, 2015. As such, his informal claim is governed by the regulations in effect at the time of its filing, which did not require claims to be filed on standard forms. As an April 2013 statement by the Veteran shows an intent to apply for benefits a right hip disorder, it is deemed an informal claim. The applicable statutory and regulatory provisions, upon receipt of an informal claim, require that VA look to all communications from the Veteran that may be interpreted as applications or claims, both formal and informal, for benefits. VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5102; 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must identify the benefit sought and evidence of an intent to apply for the benefit. See 38 C.F.R. §§ 3.1(p), 3.155(a). Importantly, medical evidence reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a), "because the mere presence of the medical evidence does not establish an intent on the part of the Veteran to seek" service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). In this case, an August 2003 rating decision denied service connection for right hip joint stiffness disorder. This denial arose from a March 2003 informal claim. The Veteran filed a notice of disagreement in September 2003. In addition, in correspondence submitted to the RO in September 2003 he elected to have a decision review officer review his claim. A statement of the case was issued on the matter in March 2004. The Veteran did not submit a Substantive Appeal to perfect the claim on appeal; therefore, the rating decision became final. On April 9, 2013 the RO received the Veteran's informal claim essentially to reopen the previously denied claim of service connection for a right hip disorder. In a January 2014 rating decision, service connection was granted for degenerative joint disease of the right hip (previously claimed as stiffness). In December 2014, the Veteran filed a notice of disagreement with the rating decision. At the November 2019 hearing, the Veteran, in essence, related that the effective date for the grant of service connection for his right hip disorder should be in 2003 because the exact facts used to grant service connection in 2013 should have been used to grant service connection in 2003 when he initially filed the claim for a right hip disorder. As noted, the Veteran did not perfect an appeal of the August 2003 rating decision that denied the claim of service connection for a right hip disorder. After a thorough review of the record, the Board finds no indication of evidence prior to April 9, 2013 that can reasonably be construed as a claim to reopen the previously denied claim of service connection for a right hip disorder. While the Board recognizes the Veteran's personal belief that the effective date for the grant of service connection for a right hip disorder should be earlier than April 9, 2013, the governing legal authority is clear and specific, and VA is bound by it. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to an effective date earlier than April 9, 2013, for the grant of service connection for a right hip disorder is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.