Citation Nr: 21062832 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-08 487 DATE: October 12, 2021 ORDER Restoration of a 40 percent evaluation for a lumbar spine strain from May 1, 2021, is denied. A rating higher than 40 percent prior to May 1, 2021, and higher than 20 percent thereafter is denied. REMANDED A rating higher than 50 percent for unspecified anxiety disorder with secondary depressive disorder is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. As of May 1, 2021, the preponderance of the evidence does not show that the Veteran's lumbar spine disability was manifested by limitation of flexion to 30 degrees or less or any incapacitating episodes of IVDS that required bed rest prescribed by a physician; ankylosis was not shown. 2. Prior to May 1, 2021, the preponderance of the evidence does not show that the Veteran's lumbar spine disability was manifested by any degree of ankylosis or any incapacitating episodes of IVDS that required bed rest prescribed by a physician. CONCLUSION OF LAW 1. The criteria for restoration of a 40 percent disability rating for the Veteran's service-connected back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.10, 4.13, 4.71a. 2. The criteria for a rating higher than 40 percent for a lumbar spine disability prior to May 1, 2021, and higher than 20 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DCs 5237, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2012 to November 2014. The Board has previously remanded these matters. Rating Reduction The Veteran sought a higher rating for his lumbar spine condition in September 2015. A January 2016 rating decision increased the Veteran's lumbar spine rating to 40 percent as of his September 24, 2015, claim. The Veteran appealed this rating. In a February 2020 rating decision, the Veteran's lumbar spine rating was reduced from 40 percent to 20 percent effective May 1, 2021. In rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing. 38 C.F.R. § 3.105(i). Thereafter, a final rating action will be taken and the award will be reduced or discontinued effective 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. See 38 C.F.R. §§ 3.105(e); 3.500(r). An August 2020 rating decision proposed reducing the Veteran's low back rating to 10 percent; a September 2020 rating decision proposed reducing the Veteran's low back disability to 20 percent. The Veteran was provided a copy of the August 2020 rating decision and notified of the proposed reduction of his lumbar spine rating by a September 25, 2020, letter. The Veteran was provided notice of his right to testify at a pre-determination hearing and given at least 60 days in which to present additional evidence. The Veteran was also informed that his overall combined rating would decrease from 80 percent to 70 percent because of the reduction. In the February 2021 rating decision, the Veteran's back disability was reduced to 20 percent effective May 1, 2021. Here, the Veteran was notified of his rights, given an opportunity for a hearing and time to respond, and the rating reduction was made effective no sooner than permitted. Thus, the Board finds that there was adherence to the procedures required under 38 C.F.R. § 3.105(e); and will proceed to discuss the propriety of the reductions. A rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421; also see Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections. Under 38 C.F.R. § 3.344, ratings for disabilities that have been have continued for long periods at the same level (5 years or more), as in this case, and are subject to episodic improvement will not be reduced based on a single examination, and reductions should not be based on an examination that was less thorough and complete than the examination on which the rating was assigned. If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). As such, the Board will consider any pertinent post-reduction evidence favorable to the Veteran's restoration claim. The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evan v. West, 12 Vet. App. 22, 30 (1998). As a preliminary matter, the Board notes that, while this appeal was pending, VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 85523, 85524 (Dec. 29, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. In this matter, the Veteran's back disability was rated under Diagnostic Codes (DC) 5237 and 5243. DC 5237 was not subject to the 2021 revisions. The provisions of DC 5243 which apply to IVDS under the revisions require disc herniation with compression and/or irritation of the adjacent nerve root. Though a January 2015 VA medical record shows lumbar disc herniation, there was no notation of nerve root implication. Further, 2015 radiology reports showed the Veteran had disc bulge without protrusion, canal, or foraminal stenosis. Thus, as the Veteran's medical records do not show that he meets the revised criteria for IVDS, his low back disability will be evaluated under the prior provisions of DC 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, DC 5237 provides a 20 percent disability rating for 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 where there is forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are 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 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. 38 C.F.R. § 4.71a, General Rating Formula, Note 2; see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. In regards to the reduction of the Veteran's lumbar spine rating, based on careful review of all the evidence, the Board finds that, at the time of the reduction, the Veteran's back disability was not manifest by limitation of flexion to 30 degrees or less, ankylosis, or any incapacitating episodes of IVDS that required bed rest prescribed by a physician. See March 2018 and August 2020 VA examinations. As of his March 2018 VA examination the Veteran's at worst range of motion was forward flexion to 40 degrees. He did not report flare-ups or functional loss as a result of his lumbar spine disability. His August 2020 range of motion was forward flexion to 80 degrees with no flare-ups or functional loss reported. There were no reported episodes of bed rest due to IVDS documented in the Veteran's file. Furthermore, the preponderance of the evidence did not show that pain, weakness, fatigue, muscle spasms, or incoordination caused further functional loss. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. at 202 (1995). Finally, the Board notes that the Veteran and his representative have not identified any evidence which would contract the findings of the 2018 or 2020 VA examinations or would serve as evidence against finding the reduction proper. As the Veteran's back disability rating was in place for more than five years, the Board also notes that the improvements in the Veteran's back disability were documented in two VA examinations and that his back showed increased improvement from the 2018 to 2020 examination. Accordingly, the Board finds that the reduction from 40 to 20 percent for the Veteran's low back disability as of May 1, 2021, was proper. This does not suggest that the Veteran does not have problems with his back or disregard the Veteran's credible reports of pain associated with his back, however, the Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating As to higher ratings, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. At the outset, the Board notes the only available rating higher than 40 percent would require some degree of ankylosis or doctor prescribed bed rest for the Veteran's back. However, the evidence of record does not show that the Veteran's has any degree of ankylosis or has had any doctor mandated bed rest related to his back. Thus, ratings higher than 40 percent under DC 5237 and a rating pursuant to DC 5243 are inapplicable to the Veteran at any time during the period on appeal. Furthermore, after review of the evidence the Board also does not find that the Veteran's low back disability warrants a rating higher than 20 percent as of May 1, 2021, currently in effect. As stated above, the Veteran's 2018 and 2020 VA examinations show that he did not have reported flare-ups or functional loss due to his back disability. His documented at worst range of motion as of 2018 was flexion to 40 degrees, which is well below the 30 degrees or less requirements of DC 5237. As the Veteran did not report any flare-ups or functional loss in either his 2018 or 2020 VA examinations, consideration of a reduction of his range of motion due to those issues is inapplicable. Additionally, functional loss due to repetitive use testing was not documented in either his 2018 or 2021 examinations. As such ratings higher than 40 percent prior to May 1, 2021, and 20 percent thereafter are denied. The Board has again considered the Veteran's statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Higher Rating for Unspecified Anxiety Disorder After review of the record, the Board found that the Veteran's most recent VA examination to determine the severity of his anxiety disorder was conducted in 2016. A more current examination is warranted. TDIU The Board also finds that the claim of entitlement to TDIU is inextricably intertwined with the remand of the claim for a higher rating for the Veteran's unspecified anxiety disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: (Continued on the next page) 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected unspecified anxiety disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to unspecified anxiety disorder. 2. Thereafter, after the above directives have been completed and appropriate action has been taken on the remanded claim, and completing any other development necessary, readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.