Citation Nr: 21069444
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 17-48 084A
DATE: November 18, 2021

ORDER

A 40 percent disability rating for service-connected lumbar spine disability is restored; the appeal is granted to this extent.

A disability rating in excess of 40 percent for a lumbar spine disability is denied.

A disability rating in excess of 20 percent for a right knee disability is granted.

REMANDED

A disability rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is remanded.

A disability rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is remanded.

A disability rating in excess of 10 percent for left lower extremity femoral nerve radiculopathy is remanded.

A disability rating in excess of 10 percent for right lower extremity femoral nerve radiculopathy is remanded.

FINDINGS OF FACT

1. The Veteran served on active duty from November 1983 to November 2003. 

2. In a November 2017 rating decision, the RO reduced the Veteran's lumbar spine disability rating from 40 percent to 20 percent. 

3. At the time of the reduction in the disability rating for a lumbar spine disability, the 40 percent rating had been in effect for a period of less than five years.

4. At the time of the November 2017 rating decision, the evidence did not show a sustained improvement in the Veteran's service-connected lumbar spine disability under ordinary conditions of life and work.

5. A lumbar spine disability has been manifested by subjective complaints of pain, and trouble walking, standing, sitting, or bending; objective findings reflected impaired range of motion without ankylosis, and IVDS without incapacitating episodes having a total duration of at least six weeks during the past 12 months

6. A right knee disorder has been manifested by subjective complaints of pain and instability; objective findings have been manifested by a semilunar cartilage condition with frequent episodes of pain and locking, and no medial tibial stress syndrome (MTSS) or shin splints.

CONCLUSIONS OF LAW

1. The criteria for reduction of a 40 percent rating to a 20 percent rating for a lumbar spine disability have not been met; restoration is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.7, 4.40, 4.45, 4.59, 4.130, Diagnostic Code 5242 (2020).

2. The criteria for a rating in excess of 40 percent for a lumbar spine disability, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5242 (2020). 

3. The criteria for a rating of 20 percent, but no more, for a right knee disability have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5299-5260 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

This appeal was previously remanded by the Board in April 2019 for additional development. As to issues decided in this decision, there has been substantial compliance with the remand directives related to those issues, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271.

In December 2017, the Veteran requested a hearing before a Veteran's Law Judge. In May 2018 correspondence, he withdrew that request. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d).

Rating of Lumbar Spine Disability

There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).

Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). VA regulation 38 C.F.R. § 3.344 addresses stabilization of disability ratings. Provisions at 38 C.F.R. §§ 3.344 (a) and (b) require special scrutiny and care in reducing a rating that has continued at the same level for five years or more. Brown v. Brown, 5 Vet. App. 413 (1993). The provisions of 38 C.F.R. §§ 3.344 (a) and (b) do not apply to disabilities that have not become stabilized and that are likely to improve. 38 C.F.R. § 3.344 (c).

Here, in a January 2016 rating decision, the RO increased the Veteran's disability rating for a lumbar spine disability from 10 percent to 40 percent, effective April 13, 2015. In a May 2016 rating decision, the RO continued the rating and granted an earlier effective date to April 11, 2015. Later, in a November 2017 rating decision, the RO reduced the Veteran's lumbar spine rating from 40 percent to 20 percent, effective October 16, 2017, seemingly without warning. 

The 40 percent disability rating was in effect for less than five years. Therefore, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply, and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c).

Nevertheless, the Court noted in Brown that there are several general VA regulations that apply to all rating reductions, regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 4 Vet. App. 413 (1993). Specifically, the evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). 

The determination in a reduction in rating case must include the proper application as to the standard of proof. To warrant reduction in 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 v. Brown, 5 Vet. App. 413, 420 (1993); Peyton v. Derwinski, 1 Vet. App. 292, 286.

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 evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such ex post facto evidence may not be used to justify an improper reduction.

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.

The Veteran's lumbar spine disability has been evaluated under DC 5243. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Specifically, the amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine.

Under the applicable rating criteria, the available medical evidence should reflect: 

	Forward flexion of the thoracolumbar spine 30 degrees or less (40 percent);

	Favorable ankylosis of the entire thoracolumbar spine (40 percent);

	Unfavorable ankylosis of the entire thoracolumbar spine (50 percent);

	IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months (60 percent).

Here, the January 2016 rating decision that assigned the initial disability rating of 40 percent was based on a July 2015 VA examination. Thus, the Board will consider that examination in relation to the other, more recent evidence of symptoms to determine whether sustained improvement has been shown.

During the July 2015 VA examination, the Veteran reported progressively worsening back pain, worse on the right, with radiating pain to his spine. He noted that it interfered with his sleep, getting in and out of bed, and on or off the couch, remaining in a seated position. He also stated that he had issues with prolonged sitting, standing, walking or sitting. Range of motion testing revealed forward flexion to 20 degrees, extension to 5 degrees, and bilateral flexion and rotation to 0 degrees. 

He was afforded another VA examination in March 2016, and again reported worsening symptoms, struggling getting in and out bed, and an inability to engage in prolonged standing, sitting, or walking. He was diagnosed with IVDS with radiculopathy. Due to pain, the examiner was unable to test him or obtain range of motion measurements. 

At an October 2017 VA examination, he reported flare ups of the back akin to sharp, stabbing pain, which made It hard to sit or lay down. Once again, he noted issues with prolonged walking, sitting, standing or bending. Range of motion testing revealed flexion to 50 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, and left lateral flexion, and bilateral rotation to 15 degrees. 

The examiner noted that L4/L5/S1/S2/S3 nerves were involved bilaterally with mild radiculopathy. He reported regular use of a cane, and occasional use of a brace. There was no ankylosis. The examiner found that his spine disability affected his functional impact in the form of prolonged sitting, standing, walking, heavy lifting, kneeling, squatting, climbing, and bending. Evidence of pain was found on passive range of motion. 

Based solely on the finding of an increased forward flexion, the RO reduced the Veteran's disability rating from 40 percent to 20 percent. This was despite of the examiner's findings that the Veteran's functional impact was greatly affected, the finding of IVDS in the March 2016 examination, and the Veteran's complete inability to perform range of motion testing at the March 2016 examination. 

Additionally, the RO seemingly did not consider the Veteran's repeated assertions of worsening symptomatology. In fact, he specifically noted he had to sell his car and purchase a different one during that time because he had such difficulty getting in and out of his car. Additionally, his VA treatment records for that time show consistent complaints of back pain, which, if any relief was shown, was directly related to medication alterations. 

Upon review of all the evidence of record, both lay and medical, at the time of the reduction, the Board finds that the evidence does not show improvement in the Veteran's ability to function under the ordinary conditions of life and work sufficient to warrant a decrease in rating. The findings with respect to the symptoms upon which the Veteran's 40 percent rating was based have been relatively consistent throughout the appeal period. In this regard, the Veteran was assigned a 40 percent rating based on the July 2015 VA examination report showing impairment in his range of motion. 

In this regard, even the October 2017 VA examination upon which the reduction was based, reflected significant worsening in his ability to perform activities of daily living. He also reported increased pain in subsequent statements. In fact, the only issue which reflected improvement was his range of motion, which at his prior scheduled VA examination he was in too much pain to even partake in. As previously indicated, the applicable provisions impose a clear requirement that VA rating reductions be based upon a review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

As noted above, in a rating reduction case, it is not sufficient to show that an improvement in a disability has occurred. That is, it is not sufficient to show that the Veteran's range of motion scores or that some of his symptoms have slightly improved. Instead, the evidence must also demonstrate that the improvement actually reflected an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Brown and Schafrath. 

In sum, the evidence on file at the time of the rating reduction did not show improvement in the Veteran's ability to function under the ordinary conditions of life and work. The RO did not specifically identify any improvement of the Veteran's lumbar spine disability except for a slightly increased range of motion. 

Indeed, the RO noted only that the Veteran did not currently meet the criteria for a 40 percent evaluation under the provisions of Diagnostic Code 5242. This is the defect identified by the Court in Brown. Considering the facts of this case, to include objective findings and the Veteran's reported functional impairment, the Board concludes that there was insufficient evidence to reduce the rating for the service-connected lumbar spine disorder from 40 percent to 20 percent under Diagnostic Code 5242. 

Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that a preponderance of the evidence did not show that the Veteran's lumbar spine disability underwent improvement. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105 (e). Accordingly, the reduction was improper, and the 40 percent evaluation for the Veteran's service-connected lumbar spine disorder, under Diagnostic Code 5242, is restored, and the appeal is granted to this extent.

Next, the evidence does not show, and the Veteran does not assert, that a higher rating is warranted at any time during the relevant appeal period. Specifically, the Veteran was later afforded VA examinations for his spine in June 2019 and December 2019. At no point did any examiner reflect findings of ankylosis of the spine. Additionally, while several diagnosed IVDS, none found IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Thus, a disability rating higher than 40 percent is not warranted, and the appeal is denied.

Increased Rating for Right Knee

As noted briefly above, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 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). If the amended 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 pre-amended regulation is more favorable, VA can apply the earlier version of the regulation for the period both prior to and from the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

The Veteran has been rated at 10 percent under DCs 5003-5260. The Board will consider all appropriate diagnostic codes. Prior to the regulatory change, a 20 percent rating was warranted when the objective medical evidence showed:

	moderate recurrent subluxation or lateral instability;

	dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint;

	flexion of the leg limited to 30 degrees;

	extension of the leg limited to 15 degrees; or

	malunion of the tibia or fibula with moderate knee or ankle disability.

As of February 7, 2021, under the amended criteria, a 20 percent rating is warranted when the objective medical evidence shows:

	sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or

	unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation;

	a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker;

	flexion of the leg limited to 30 degrees;

	extension of the leg limited to 15 degrees; or

	MTSS, or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity.

Prior to the regulatory change, a 30 percent rating was warranted when the objective medical evidence showed malunion of the tibia or fibula with marked knee or ankle disability.

As of February 7, 2021, under the amended criteria, a 30 percent rating is warranted when the objective medical evidence shows MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities.

Based on the medical evidence, the Board finds that a rating of 20 percent, but not higher, is warranted for a right knee disability. Specifically, and as to DC's 5258 and 5259, a right semilunar cartilage condition has been shown in the form of a meniscal tear, and it has been found to cause frequent episodes of pain, locking, and effusion into the joint. Specifically, in a July 2015, March 2016, October 2017, and December 2019 VA examiners all found a semilunar cartilage condition was shown which caused frequent episodes of pain and locking. 

Based on the above, the medical evidence supports a 20 percent rating, but no more, for the right knee. In this regard, the medical evidence showed a semilunar cartilage condition with frequent episodes of pain and "locking," into the joint.

However, a higher rating is not warranted, as the medical evidence did not show shin splints requiring treatment for no less than 12 consecutive months, were unresponsive to surgery, and required either shoe orthotics or other conservative treatment, both lower extremities. Further, while the Veteran has used a brace, crutch, cane, walker, and wheelchair to ambulate, there was no evidence of a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Therefore, the medical evidence supports a 20 percent rating, but no more, for the right knee.

To the extent that the Veteran asserts a separate rating is warranted for instability, it has not been shown on examination for a separate rating to be warranted under DC 5257. Regarding the version of DC 5257 in effect prior to February 7, 2021, a higher or separate rating is not warranted as the evidence weighs against a finding of the presence of slight lateral instability or recurrent subluxation.

Specifically, the Veteran has repeatedly complained of "buckling" in VA and private treatment records as well as VA examinations. However, no VA or private examiner has ever noted evidence of instability. The Veteran has repeatedly refused to perform joint instability testing at various VA examinations. However, when he obliged at the July 2015 VA examination, no evidence of subluxation or instability was found. 

Notably, there are specific medical tests that are designed to reveal instability of the joints. Given that the tests performed are generally recognized in the medical community as diagnostic for instability, the above results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran's lay statements.

While the Veteran may experience a feeling that his knee may give way or is unstable, if subluxation or instability were present, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed.

The examiners were well aware of the Veteran's reports of instability but still found that, overall, there was no history of recurrent subluxation or instability. The medical opinions were fully informed, made based on diagnostic testing results and consideration of the Veteran's statements. The finding of several VA examiners of no history of instability or subluxation is the most probative evidence on this point.

Regarding the version of DC 5257 in effect since February 7, 2021, a rating for recurrent subluxation or instability is not warranted because the evidence weighs against a finding of persistent instability. Notably, diagnostic testing for stability at examinations did not reveal any instability, which is strong evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, persistent instability is not present by definition.

Further, a compensable rating is not warranted for patellar instability. The evidence does not show surgical repair involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), and, as discussed above, the evidence weighs against a finding of recurrent instability. Moreover, the medical evidence does not reflect a diagnosis involving the patellofemoral complex; that is, the quadriceps tendon, the patella, or the patellar tendon. The Veteran, as a lay person, is not competent to provide the required diagnosis.

In so finding, and with regard to all claims, the Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes.

Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his disabilities are evaluated.  

Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. 

Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

In June and December 2019 VA examinations, the Veteran was found to have moderate overall disability resulting from his bilateral lower extremity sciatic and femoral nerve radiculopathy. The examiner also expressed that there was a worsening of his conditions. However, these findings were done in conjunction with a VA spine examination and no separate evaluation was done to assess the levels of paralysis in his sciatic and femoral nerves as is required for the rating criteria. Therefore, a VA examination must be conducted to assess the level of severity of his bilateral lower extremity sciatic and femoral nerve disabilities. 

The matters are REMANDED for the following action:

1. Identify and obtain any pertinent, outstanding, VA and private treatment records and associate them with the claims file.

2. Schedule the Veteran for a VA examination to assess the status of his bilateral lower extremity sciatic and femoral nerve radiculopathy. The entire claims file should be made available to, and reviewed by, the examiner. Any indicated studies should be performed, and a separate radiculopathy DBQ should be completed to allow for properly rating his disability. 

 

 

DUSTIN L. WARE

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Yacoub, 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.