Citation Nr: A21017666
Decision Date: 11/02/21	Archive Date: 11/01/21

DOCKET NO. 200121-62225
DATE: November 2, 2021

ORDER

Restoration of a 20 percent disability rating for degenerative arthritis of the lumbar spine is granted.

Restoration of a 20 percent disability rating for radiculopathy of the left lower extremity is granted.

Restoration of a 20 percent disability rating for radiculopathy of the right lower extremity is granted.

Restoration of a 10 percent disability rating for migraines is granted.

FINDINGS OF FACT

1. The reduction of the disability evaluation for degenerative arthritis of the lumbar spine was not proper, as reexamination disclosing improvement does not clearly indicate an improvement in the ability to function under the ordinary conditions of life and work.

2. Actual improvement in radiculopathy of the Veteran's left lower extremity has not been disclosed through an adequate examination and examination report.

3. Actual improvement in radiculopathy of the Veteran's right lower extremity has not been disclosed through an adequate examination and examination report.

4. Actual improvement in the Veteran's migraine disability has not been disclosed through an adequate examination and examination report.

CONCLUSIONS OF LAW

1. The criteria for restoration of a 20 percent disability rating for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code 5242.

2. The criteria for restoration of a 20 percent disability rating for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.124a, Diagnostic Code 8526.

3. The criteria for restoration of a 20 percent disability rating for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.124a, Diagnostic Code 8526.

4. The criteria for restoration of a 10 percent disability rating for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 2012 to December 2016. In a December 2017 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for degenerative arthritis of the lumbar spine and assigned a 20 percent disability rating, granted service connection for radiculopathy of the left lower extremity and assigned a 20 percent rating, granted service connection for radiculopathy of the right lower extremity and assigned a 20 percent rating, and granted service connection for migraines and assigned a 10 percent rating. The RO ultimately established that service connection for the Veteran's lumbar spine disability, lower extremity radiculopathies, and migraines was effective from December 4, 2016, the day after the Veteran's separation from service.

In an August 2019 rating decision, the RO proposed to decrease the ratings for degenerative arthritis of the lumbar spine to 10 percent, radiculopathy of the left lower extremity to 0 percent, radiculopathy of the right lower extremity to 0 percent, and migraines to 0 percent. In an October 2019 rating decision, the RO made each of those rating reductions, effective January 1, 2020.

The Veteran appealed the rating reductions to the Board of Veterans' Appeals (Board). In her January 2020 notice of disagreement (NOD), she selected the Board review opinion of submitting evidence to be reviewed by a Veterans Law Judge. In the following 90 days she submitted evidence for consideration.

Rating Reductions

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating 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.

Generally, 38 C.F.R. § 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction, and the veteran must be given 60 days to submit additional evidence and to request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i).

In this case, the RO proposed the rating reductions in the August 2019 rating decision. On August 2, 2019, the RO informed the Veteran that she had 60 days to submit additional evidence and to request a predetermination hearing. The Veteran did not request a hearing. On October 30, 2019, the RO informed the Veteran of the October 2019 rating action, effective January 1, 2020. The RO fulfilled the procedural requirements under 38 C.F.R. § 3.105.

The United States Court of Appeals for Veterans Claims (Court) has stated, "[T]he RO and Board are required in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown v. Brown, 5 Vet. App. 413, 421 (1993). It must also be shown that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Id. In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 280-282 (1992).

Where 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). Where a disability rating has been in effect over five years or has "stabilized" the provisions of 38 C.F.R. § 3.344(a) and (b) apply. In such cases, the evidence of record at the time of the reduction decision must demonstrate a sustained and material improvement based on the entire record of pertinent medical evidence. Lehman v. Derwinski, 1 Vet. App. 339 (1991).

Service connection for the Veteran's lumbar spine disability, lower extremity radiculopathies, and migraines was in effect for less than five years when the RO decreased the ratings for those disabilities. Therefore, the provisions of 38 C.F.R. § 3.344(c), and not those of 38 C.F.R. § 3.344(a) and (b), apply to the ratings reductions that the Veteran has appealed. A rating reduction is warranted where reexamination of the disability discloses improvement of that disability.

The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

1. Restoration of a 20 percent disability rating for degenerative arthritis of the lumbar spine

The Veteran contends that her lumbar spine disability did not improve between 2016 and 2020, so the 20 percent rating should be restored.

The RO has evaluated the Veteran's lumbar spine degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5242. In the relevant period, that code was evaluated under a General Rating Formula for Diseases and Injuries of the Spine. That formula addressed thoracolumbar spine disorders with or without symptoms such as pain (whether or not it radiated), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the formula a 50 percent rating was assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating was assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 20 percent rating was assigned 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 10 percent rating was assigned 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 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.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine was zero to 90 degrees, extension was zero to 30 degrees, left and right lateral flexion were zero to 30 degrees, and left and right lateral rotation were zero to 30 degrees. The combined range of motion referred 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 of the thoracolumbar spine was 240 degrees.

When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. 38C.F.R. § 4.59; see Correia v McDonald, 28 Vet. App. 158 (2016).

The Court has noted that "A veteran may...be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that his or her disability causes additional functional lossi.e., 'the inability...to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain." Sharp v. Shulkin, 29 Vet. App. 26, 31-32 (2017); 38 C.F.R. § 4.40. The Court added, "A higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Sharp at 32; 38 C.F.R. § 4.45.

On VA examination in November 2017, the Veteran reported that back pain developed and increased during her service. She stated that presently she had constant back pain that was aggravated by prolonged sitting and by reaching or forward bending. She reported that about two times per week, with reaching forward or to the side, she has flare-ups of sharp pain that continued for hours. She stated that back pain caused difficulty falling and staying asleep. She related that back pain caused difficulty dressing, bathing, or doing household tasks.

On examination the Veteran's thoracolumbar spine had forward flexion to 90 degrees, extension to 25 degrees, lateral flexion to 20 degrees to each side, and lateral rotation to 15 degrees to each side. There was pain on motion in each direction, and that pain caused functional loss. There was pain with weightbearing. The examiner indicated that whether there was pain on passive motion or without weightbearing could not be determined or was not medically appropriate. After three repetitions, the ranges of motion remained the same. The examiner found that pain, incoordination, and lack of endurance significantly limited functional ability with repeated use of a period of time and with flare-ups. There was severe pain on palpation of the paraspinal muscles. The thoracolumbar spine area had muscle spasm resulting in abnormal gait or abnormal spine contour. The examiner found that the Veteran's back disability affected her ability to work by limiting her from bending, lifting heavy objects, or prolonged walking, and limiting her to performing only light physical and sedentary tasks.

On VA reexamination of the Veteran's back in May 2019, the Veteran reported that from 2018 until recently she had worked part time delivering meals and had worked as a material handler. She reported ongoing back pain. She stated that physical therapy in early 2019 produced temporary improvement. She related that presently her back pain was constant and was sharp at times with heavy lifting. She reported flare-ups of increased pain with heavy lifting and after a couple hours of driving, sitting, or standing. She stated that four times a week she walked 1.5 miles or more and did sit-ups and push-ups. The examiner noted that in a VA treatment telephone contact in December 2018, the Veteran reported worsening low back pain over the preceding two months, with pain 7/10 in severity.

On examination the Veteran's thoracolumbar spine had forward flexion to 80 degrees, extension to 25 degrees, lateral flexion to 30 degrees to each side, and lateral rotation to 25 degrees to each side. There was pain on motion in each direction, and that pain did not cause functional loss. There was no evidence of pain with weightbearing or without weightbearing. After three repetitions of motions there was no additional loss of function or range of motion. The examiner concluded that the Veteran's low back pain did not significantly limit functional ability with repeated use over a period of time. The examiner found that the Veteran's lumbar paraspinous muscles had mild spasm and tenderness to palpation. The examiner stated that the thoracolumbar muscle spasm did not result in abnormal gait or abnormal spine contour. The examiner stated that the Veteran's low back disability affected her ability to work by limiting her ability to do heavy lifting or sit, drive, or stand for more than two or three hours.

In an April 2020 statement, the Veteran's representative noted the ongoing limitation of motion and pain on motion of the Veteran's low back. The representative noted the Veteran's report that her low back pain increased after lifting or a couple hours of sitting or standing.

As the 20 percent rating for the Veteran's lumbar spine disability was in effect for less than five years, a rating reduction was warranted if it's determined not only that an improvement of that disability has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993).

The evidence supports a finding that restoration of the previous 20 percent rating is warranted. The Board acknowledges that compared with the Veteran's low back disability shown on examination in November 2017, the reexamination in May 2019 seemed to show improvement in that disability. The muscle spasm and tenderness no longer resulted in abnormal gait or abnormal spine contour. Pain on motion no longer caused additional functional loss. There was no longer pain with weightbearing. The examiner found that pain did not significantly limit functional ability with repeated use over a period of time. The Veteran no longer reported that her back pain interfered with sleep, dressing, or bathing. The limitations on her "fwork capacity changed from limitation to only light or sedentary tasks to limitation in her ability to do heavy lifting or sit or stand for more than two or three hours. 

However, it does not appear that consideration was given to whether the cited improvement would be maintained under the ordinary conditions of daily life. In fact, the examiner noted that the Veteran's back pain increased after "a couple hours of driving, sitting or standing and with heavy lifting." Notably, the Veteran reported working part-time delivering meals three days a week, employment that requires driving and sitting. After a thorough review of the October 2019 rating decision, the Board is unable to identify any explanation of how the Veteran's improvement would be maintained under the ordinary conditions of life.

In reducing the disability rating, the RO did not address whether the improvement will be maintained under the ordinary conditions of life. Thus, the Board concludes that 38 C.F.R. § 3.344 was not fully considered and applied. Dofflemyer, supra. Accordingly, the rating reduction was improper, and restoration of the 20 percent rating for degenerative arthritis of the lumbar spine is warranted.

2. Restoration of a 20 percent disability rating for radiculopathy of the left lower extremity

3. Restoration of a 20 percent disability rating for radiculopathy of the right lower extremity

The Veteran contends that radiculopathy of her left and right lower extremities did not improve between 2016 and 2020, so the 20 percent rating for each should be restored.

The RO has evaluated the radiculopathy in each the Veteran's lower extremities as peripheral neuropathy of the anterior crural, or femoral, nerve, under Diagnostic Code 8526. Under 38 C.F.R. § 4.124a, neurological conditions of the extremities are rated as complete or partial loss of use of the extremity, disturbances of gait, tremors, visceral manifestations, etc. Partial loss of use of an extremity is rated by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerve. Under Diagnostic Code 8526, a 40 percent rating is assigned for complete paralysis of quadriceps extensor muscles. Incomplete paralysis is rated a 30 percent if severe, 20 percent if moderate, and 10 percent if mild.

On VA examination in November 2017, the Veteran reported that her constant low back pain was accompanied by pain on the top of her legs, worse in the right leg, and by occasional tingling in her feet. Muscle strength testing showed 4/5 strength in ankle dorsiflexion bilaterally. Strength in hip flexion, knee extension, ankle plantar flexion, and great toe extension was 5/5 bilaterally. Muscle atrophy was not present. Knee and ankle deep tendon reflexes (DTRs) were normal bilaterally. Sensation to light touch was normal bilaterally in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The straight leg raising test was positive bilaterally, suggesting bilateral radiculopathy. In both lower extremities there was moderate intermittent pain and mild paresthesias and/or dysesthesias. The examiner found that both femoral nerves were involved. 

On VA reexamination in May 2019, the Veteran reported that after sitting too long, and on first awakening in the morning, she experienced tingling and mild pain in the anterior upper thighs. She did not report numbness, loss of distal muscle strength, or loss of bowel or bladder control. The examiner noted that in in a VA treatment telephone contact in December 2018, the Veteran reported worsening over the preceding two months of pain and tingling in both upper thighs, worse in the right.

On testing muscle strength was 5/5 bilaterally in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. There was no muscle atrophy. Knee and ankle DTRs were normal bilaterally. Sensation to light touch was normal bilaterally in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The straight leg raising test was negative bilaterally. On examination the examiner found no radicular pain or other signs of radiculopathy. The examiner stated that the intermittent tingling and pain in the upper anterior thighs that the Veteran reported was not symptomatic at the time of the examination. The examiner stated that medical records and examination findings did not support a present diagnosis of left or right lumbar radiculopathy. In an August 2019 addendum to the May 2019 examination report, the examiner stated that lumbar radiculopathy in the Veteran's lower extremities had resolved.

In an April 2020 statement, the Veteran's representative noted the Veteran's report of pain and tingling in her thighs.

The May 2019 VA examiner found the radiculopathy in the Veteran's lower extremities had resolved but did not clearly explain that conclusion in light of the Veteran's report of ongoing symptoms of intermittent tingling and pain. A person does not require medical training to report perceptible symptoms such as tingling and pain. In the absence of explanation as to why the Veteran's lay account of her symptoms was discounted, the examiner's report was inadequate to show actual reduction in the radiculopathy disabilities to the point of complete resolution. As the examination report was inadequate to show improvement of the disabilities, the ratings reductions were not warranted. The Board grants restoration of a 20 percent rating for radiculopathy of the left lower extremity and restoration of a 20 percent rating for radiculopathy of the right lower extremity.

4. Restoration of a 10 percent disability rating for migraines

The Veteran contends that her migraines did not improve between 2016 and 2020, so the 10 percent rating for that disability should be restored.

Under the rating schedule, migraine headaches are rated at 50 percent with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months. A 0 percent rating is assigned with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

On VA examination in November 2017, the Veteran reported that she began to have migraines in October 2016. She stated that presently she had headaches daily. She reported that at least four days per week the headache was accompanied by nausea, photosensitivity, and phonosensitivity. She reported that during an attack she had to go in a dark room, lie down, and put something cold on her head or neck. She stated that attacks lasted 

On VA reexamination in May 2019, the Veteran reported having headache attacks with white flashing light followed by sharp pain and associated nausea. She stated that she addressed each attack by waiting it out or sleeping it off. She related that each attack lasted about two hours and that attacks occurred about four times per week.

In an April 2020 statement, the Veteran's representative asserted that migraine attacks that the Veteran described in the May 2019 examination were prostrating attacks, as she had to address each attack by waiting it out or going to sleep.

The headache attacks that the Veteran described in 2017 and 2019 require her to stop activity and can reasonably be considered to constitute prostrating attacks. During both examinations she reported prostrating attacks. The reexamination in 2019 therefore did not disclose improvement in the disability that would warrant a 0 percent rating. The Board therefore grants restoration of the 10 percent rating.

 

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. J. Kunz, 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.