Citation Nr: 21070817 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-53 162 DATE: November 26, 2021 ORDER Entitlement to restoration of a 20 percent rating for lumbosacral degenerative joint disease with spondylosis, effective January 22, 2015, is granted. FINDING OF FACT At the time of the January 2015 Rating Decision, the probative evidence weighed in favor of finding that, from January 22, 2015, any improvement in the Veteran's DJD of the thoracolumbar spine did not actually reflect an improvement in his ability to function under the ordinary conditions of life and work or in the overall frequency and severity of his symptomatology. CONCLUSION OF LAW The criteria for entitlement to restoration of the 20 percent rating for DJD of the thoracolumbar spine have been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to June 1994. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2015 rating decision, the RO, in pertinent part, decreased the rating for degenerative joint disease with scoliosis of the lumbosacral spine from 20 percent to 10 percent, effective January 22, 2015. In August 2021, the Veteran testified before the undersigned in a virtual hearing. The hearing transcript has been associated with the claims file. Entitlement to restoration of the rating assigned to degenerative joint disease with scoliosis of the lumbosacral spine, which was reduced from 20 percent to 10 percent effective from January 22, 2015 The Veteran's back disability is currently rated under Diagnostic Code 5242 at 0 percent from July 1, 1994; 20 percent from November 4, 2011; and 10 percent from January 22, 2015. The Veteran has contended that he is entitled to restoration of the 20 percent rating for his lumbar spine disability, effective January 22, 2015, stating that his condition has not improved. See October 2017 VA Form 9. To reduce a rating, the factfinder must issue a rating decision proposing to reduce the rating and notice of the 60-day period for evidence submission and the right to request a predetermination hearing within 30 days. However, in this case, the AOJ was not required to provide extra notification of the rating reduction because the reduction did not decrease the Veteran's overall combined evaluation (see March 2012 and January 2015 Codesheets, showing that the combined evaluation remained the same before and after the reduction); thus, the Board finds that the AOJ afforded proper notice. To reduce a rating, the factfinder must also determine not only that an improvement in the disability level has occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work or in frequency and severity of the symptomatology. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). 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). Under DC 5242, a 10 percent rating is warranted, in pertinent part, for: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 or more of the height. 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is warranted, in pertinent part, 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. Id. In a January 2015 VA Back (Thoracolumbar Spine) Conditions Examination, the Veteran reported that during service, he developed low back spasms. The Veteran also stated that he currently had episodic spasms and pain with shoveling snow. He also reported flare-ups of the thoracolumbar spine, with symptoms including pain, spasms, and stiffness which occurred four times a year, last 15 to 20 minutes, and limit bending. Initial range of motion showed forward flexion to 90 or greater degrees; extension to 25 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 30 or greater degrees. The Veteran was able to perform repetitive-use testing with three repetitions without any additional limitation in range of motion or any functional loss and/or functional impairment. The examiner noted that the Veteran did not have localized tenderness or pain on palpation; guarding or muscle spasm; radiculopathy or radicular symptoms; neurologic abnormalities; or IVDS. The Board finds that restoration of the 20 percent rating is warranted. Specifically, the Board highlights that the January 2015 VA Back (Thoracolumbar Spine) Conditions examination, upon which the AOJ based the reduction, is inconsistent with: (a) the Veteran's probative lay statements during the same January 2015 VA examination, in which he reported episodic spasms which were triggered by activity and flare-ups symptoms of pain, spasms, and stiffness and (b) VA treatment records, dated September 2014, which shows that the Veteran was assessed with occasional episodes of low back spasm. Here, the Board finds that the Veteran is competent to report that his condition has not improved, as his back symptoms, to specifically include that of muscle spasms, are lay observable. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered pertinent post-reduction evidence favorable to restoring the rating. Here, a September 2017 addendum opinion shows that it was likely that the Veteran had guarding or muscle spasms that caused spinal contour on his original examination in February 2015. The Board further acknowledges the Veteran's August 2021 testimony, in which he testified that he experienced back spasms triggered by activity. The Board finds that this testimony is credible as it is consistent with his prior lay statements. The Board additionally notes that the Veteran denied that his back disability worsened since 2015. Accordingly, the Board finds that, at the time of the January 2015 Rating Decision, the probative evidence weighed in favor of finding that beginning January 22, 2015, any improvement in the Veteran's DJD of the thoracolumbar spine did not actually reflect an improvement in his ability to function under the ordinary conditions of life and work or in the overall frequency and severity of his symptomatology. Thus, reduction was improper, and a restoration of the 20 percent rating is warranted. With this restoration, the Veteran's lumbar spine disability will be rated at 20 percent since November 4, 2011. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.