Citation Nr: 21066442 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-28 097 DATE: November 1, 2021 ORDER The rating reduction from 20 percent to 10 percent effective December 2, 2016, for a lumbosacral spine disability was improper and a 20 percent rating is restored effective December 2, 2016. REMANDED Entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability is remanded. Entitlement to a compensable disability rating for residuals of a fracture of the coccyx is remanded. FINDINGS OF FACT 1. The record evidence shows that the Agency of Original Jurisdiction (AOJ) reduced the disability rating from 20 percent to 10 percent effective December 2, 2016, for the Veteran's service-connected lumbosacral spine disability in the currently appealed rating decision issued in February 2017 2. The record evidence shows that the rating reduction challenged in this appeal is based on a VA examination which is inadequate for adjudication purposes. CONCLUSION OF LAW The reduction of the disability rating for a lumbosacral spine disability, by the February 2017 rating decision, was improper; the reduction in the disability rating from 20 percent to 10 percent effective December 2, 2016, for a lumbosacral spine disability is void ab initio. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Women's Army Corps from March 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision which denied the Veteran's claim for a compensable disability rating for her service-connected residuals of a fracture of the coccyx and reduced the disability rating from 20 percent to 10 percent effective December 2, 2016, for her service-connected lumbosacral spine disability. The Veteran appointed her current service representative to represent her before VA by filing a signed VA Form 21-22a at the AOJ in November 2017. A virtual Board hearing was held in January 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Veterans Law Judge who held this hearing advanced this appeal on the Board's docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900(c). The Board notes that the rating criteria for evaluating musculoskeletal disabilities were revised effective February 7, 2021. No changes were made to the rating criteria relevant to the claims addressed in this appeal, however. The Board finally notes that the AOJ reduced the disability rating from 20 percent to 10 percent effective December 2, 2016, for the service-connected lumbosacral spine disability in the currently appealed rating decision issued in February 2017. She perfected a timely appeal on this rating reduction claim. The Board observes that, in Green v. Nicholson, 21 Vet. App. 512, 2006 WL 3438028 (Vet. App.), the United States Court of Appeals for Veterans Claims (Court) held that, in cases where a rating reduction is on appeal, "the Board must determine whether the reduction of the Veteran's disability rating was proper and must not phrase the issue in terms of whether the Veteran was entitled to an increased rating, including whether the Veteran was entitled to restoration of a previous rating." Id., at pp. 3. The Veteran in Green appealed the Board's denial of a claim for restoration of a 100 percent rating for service-connected prostate cancer. Although the Board recognizes that single-judge memorandum decisions of the Court are not binding precedent, the unpublished single-judge memorandum decision of the Court in Green can be considered persuasive authority in this appeal. Having reviewed the record evidence, the Board finds that this issue should be characterized as stated above. Because the Veteran currently lives within the jurisdiction of the RO in Boston, Massachusetts, that facility has jurisdiction in this appeal. The Board finds that the rating reduction from 20 percent to 10 percent effective December 2, 2016, for a lumbosacral spine disability was improper. The Veteran essentially challenges the propriety of the rating reduction for the service-connected lumbosacral spine disability which the AOJ implemented in the currently appealed rating decision issued February 2017. She specifically contends that there was no improvement in the symptomatology attributable to her service-connected lumbosacral spine disability and, as such, the rating reduction was improper. The Board agrees with her assertions that the challenged rating reduction was improper. The record evidence shows that, although the AOJ correctly concluded in the currently appealed rating decision that this rating reduction did not reduce the overall disability compensation, the VA examination on which the AOJ based the rating reduction does not comply with the Court's decision in Correia. See Correia v. McDonald, 28 Vet. App. 158 (2016). In other words, because the AOJ relied on a VA examination which is inadequate for adjudication purposes in reducing the disability rating for the service-connected lumbosacral spine disability, the rating reduction is improper and void ab initio. Thus, the AOJ committed legal error when it reduced the disability rating from 20 percent to 10 percent effective December 2, 2016, for the service-connected lumbosacral spine disability. In considering the propriety of the reduction, the Board observes that, in an October 2009 rating decision, the AOJ granted service connection for a lumbosacral spine disability (which it characterized as degenerative disc disease of the lumbosacral spine) and assigned a 10 percent rating effective June 18, 2003. The AOJ concluded that the lumbosacral spine disability was related to active service because the medical evidence showed that this disability was related to an in-service fall. The AOJ also concluded that June 18, 2003, was the appropriate effective date for a 10 percent rating because that was the date of the Veteran's claim. The AOJ subsequently assigned a higher 20 percent rating effective August 13, 2013, for the service-connected lumbosacral spine disability in an October 2014 rating decision. The AOJ found that the medical evidence supported an increased rating for this service-connected disability on that date. The AOJ also concluded that August 13, 2013, was the appropriate effective date for a 20 percent rating because that was the date of the Veteran's claim. Neither of these rating decisions were appealed and became final. As noted elsewhere, the AOJ reduced the disability rating for the service-connected lumbosacral spine disability from 20 percent to 10 percent effective December 12, 2016, in the currently appealed rating decision issued in February 2017. The Board notes here that the AOJ did not have to follow the due process procedures for rating reductions outlined in § 3.105(e) because this rating decision did not reduce the Veteran's overall level of disability compensation. See 38 C.F.R. § 3.105(e). The AOJ essentially concluded in the February 2017 rating decision that the rating reduction was warranted because reexamination of the service-connected lumbosacral spine disability showed sustained improvement under the ordinary conditions of life. The Board acknowledges here that improvement in symptomatology of a service-connected disability can be a valid basis for a rating reduction under § 3.105(e). Id. The Board also acknowledges that reexamination of the service-connected lumbosacral spine disability on December 2, 2016, demonstrated sustained improvement under the ordinary conditions of life because forward flexion was to 90 degrees with no additional limitation of motion on repetitive testing. Nevertheless, the Board finds that the December 2, 2016, VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) is inadequate for VA adjudication purposes because it did not comply with Correia. See Correia, 28 Vet. App. at 158. The Board notes that, in Correia, the Court mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbosacral spine, as in this case) in order to satisfy judicial review in increased rating claims. Id. The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. It does not appear that the December 2016 VA back (thoracolumbar spine) conditions DBQ complies with Correia. The VA examiner was not asked to provide and did not provide any information regarding joint testing for pain on both active and passive motion or in weight-bearing and non-weight bearing. (The Board notes parenthetically that range of motion measurements of an opposing undamaged joint cannot be provided for the lumbosacral spine because there is no opposing joint.) See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). The Board acknowledges that a subsequent VA examination in March 2018 complied with Correia and showed sustained improvement in the symptomatology attributable to the service-connected lumbosacral spine disability. Nevertheless, the AOJ based the rating reduction challenged in this appeal on the earlier VA examination in December 2016 which did not comply with Correia and is inadequate for adjudication purposes. In other words, because the VA examination on which the AOJ based the rating reduction from 20 percent to 10 percent effective December 2, 2016, for the service-connected lumbosacral spine disability is inadequate for VA adjudication purposes, the rating reduction is void ab initio. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the rating reduction from 20 percent to 10 percent effective December 2, 2016, for a lumbosacral spine disability was improper and a 20 percent rating is restored effective December 2, 2016. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 20 percent for a lumbosacral spine disability is remanded. As discussed above, the Board has restored a 20 percent rating effective December 2, 2016, for the service-connected lumbosacral spine disability. The Veteran testified credibly at her January 2021 virtual Board hearing that the symptomatology attributable to this disability had not improved and, in fact, had worsened since her most recent VA examination. The record evidence shows that the most recent VA back (thoracolumbar spine) conditions DBQ occurred in March 2018. As also discussed above, the most recent VA examination in March 2018 complied with Correia. See Correia, 28 Vet. App. at 158. The Court has held that when a Veteran alleges that his or her service-connected disability has worsened since he or she was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions and the length of time which has elapsed since her most recent VA examination in March 2018, the Board finds that, on remand, she should be scheduled for an updated VA examination to determine the current nature and severity of her service-connected lumbosacral spine disability. 2. Entitlement to a compensable disability rating for residuals of a fracture of the coccyx is remanded. The Veteran finally contends that her service-connected residuals of a fracture of the coccyx is more disabling than currently evaluated. The record evidence shows that this disability was examined most recently as part of the March 2018 VA back (thoracolumbar spine) conditions DBQ. Given the Veteran's contentions, and given the length of time which has elapsed since her most recent VA examination in March 2018, the Board finds that, on remand, she should be scheduled for an updated VA examination to determine the current nature and severity of her service-connected residuals of a fracture of the coccyx. Id. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for updated examination to determine the current nature and severity of her service-connected lumbosacral spine disability and her service-connected residuals of a fracture of the coccyx. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.