Citation Nr: 21072140 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-39 155 DATE: December 2, 2021 ORDER A 20 percent disability rating for the Veteran's low back degenerative disk disease is restored, effective April 1, 2017. REMANDED Entitlement to an increased rating for low back degenerative disk disease, currently rated as 20 percent disabling prior to November 8, 2019, and 40 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT It is not established that there was actual improvement in the Veteran's low back disability that is reasonably certain to be maintained under the ordinary conditions of life and work to warrant a reduction from 20 percent to 10 percent, effective April 1, 2017. CONCLUSION OF LAW The reduction of the 20 percent disability rating for the low back disability was not proper. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5242-5237 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to September 1979 and from November 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) from a January 2017 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). Historically, the Veteran filed an increased rating claim for his service-connected thoracolumbar spine degenerative disk disease in September 2016. In a November 2016 rating decision, the RO proposed to reduce the evaluation for the Veteran's service-connected low back disability from 20 percent to 10 percent. A subsequent January 2017 rating decision implemented the proposed reduction and assigned a 10 percent rating effective April 1, 2017. The Veteran perfected an appeal of this decision. See July 2017 Notice of Disagreement (VA Form 21-0958); July 2017 Statement of the Case (SOC); July 2017 Substantive Appeal (VA Form 9). See also 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.200, 20.201, 20.202, 20.203 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA's legacy system). In a March 2019 decision, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional evidentiary development, to include the provision of a VA examination to evaluate the nature and current level of severity of the Veteran's service-connected low back disorder. That examination occurred in November 2019, and, in a March 2020 rating decision, the AOJ granted an increased 40 percent rating for the service-connected thoracolumbar spine degenerative disk disease, effective from November 8, 2019, the date of the VA back examination. In a simultaneously issued supplemental SOC (SSOC), the AOJ denied a rating in excess of 40 percent. See March 2020 SSOC. Finally, the Board notes that, although the Veteran filed a formal claim for a TDIU during the pendency of this appeal, which was denied by the RO in a January 2021 Rating Decision, a derivative TDIU claim also had been raised by the record as part and parcel of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also October 2020 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (reflecting the Veteran's assertion that his retirement in September 2019 was due primarily to the symptoms and functional limitations caused by his service-connected low back disability). 1. A 20 percent disability rating for the Veteran's low back degenerative disk disease is restored, effective April 1, 2017. The Veteran maintains that the reduction of his disability rating from 20 percent to 10 percent for his low back disability, effective April 1, 2017, was improper and that the 20 percent rating should be restored. The provisions of 38 C.F.R. § 3.105(e) allow for a reduction in the evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. See also VAOPGCPREC 71-91 (Nov. 1991), VAOPGCPREC 29- 97 (Aug. 1997). 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 found 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). All due process requirements have been satisfied in this case. Specifically, a November 2016 rating decision proposed to reduce the evaluation for the Veteran's service-connected low back disability from 20 percent to 10 percent, and the Veteran was also sent a letter in November 2016 notifying him of the proposed reduction. In the letter, the RO advised the Veteran that he had (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level and (2) that he had 30 days to request a predetermination hearing. The RO also notified the Veteran that this reduction would reduce his overall disability rating (for his combined service-connected disabilities) from 60 percent to 50 percent. The RO issued a final rating decision in January 2017, which reduced the rating to 10 percent, effective April 1, 2017. Notice was sent to the Veteran in January 2017. The Board observes that April 1, 2017, is greater than 60 days after the last day of the month in which a 60-day period from the date of January 2017 notice to the Veteran of the final action expired. The Board thus finds that all due process requirements under § 3.105(e) were satisfied. Moreover, at the time of the rating reduction, the 20 percent evaluation assigned to the Veteran's lumbar spine disorder had been in effect from June 4, 2014. See February 2015 Rating Decision (granting service connection for degenerative disc disease of the thoracolumbar spine and assigning a 20 percent evaluation based upon VA examination findings reflecting lumbar spine flexion limited to 60 degrees following repetitive motion testing). As the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b), which provide additional regulatory hurdles to rating reductions for disabilities that have become "stabilized," do not apply. Rather, the provisions of 38 C.F.R. § 3.344(c), which pertains to disabilities that have not become stabilized and are likely to improve, provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. Specifically, re-examinations disclosing improvement in such disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In this regard, not only must it be determined that an improvement in a disability has actually occurred, but also that such improvement reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See id.; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). VA is required to establish by a preponderance of evidence that the rating reduction is warranted. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995) (holding that the burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence). A reduction in rating must be based upon review of the entire history of a veteran's disability. See Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. See Faust v. West, 13 Vet. App. 342, 349 (2000); see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). A reduced evaluation contemplates a situation where an actual change in the disability has occurred and not merely a difference in thoroughness of the examinations or in use of descriptive terms. See Brown, 5 Vet. App. at 420-21. In short, three questions must be addressed in determining whether a rating reduction was warranted by the evidence. Id. at 421. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Id. Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Id. Third, it must be determined whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Id. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point may include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). Importantly, the reduction of a rating must have been supported by the evidence on file at the time of the reduction, rather than only by post-reduction evidence. However, pertinent post-reduction evidence favorable to restoring the rating must also be considered and may show that the rating reduction was improper. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Turning to the merits of the reduction, the Board concludes that, at the time of the reduction, there was not sufficient evidence to reduce the rating. Specifically, the preponderance of the evidence does not show ascertainable improvement of the Veteran's service-connected thoracolumbar spine degenerative disk disease so as to result in an enhanced ability to function under the ordinary conditions of life and work, as is required to support the rating reduction from 20 percent disabling to 10 percent, effective April 1, 2017. The 20 percent rating for the Veteran's low back degenerative disk disease was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242-5237 (2014), which pertained to degenerative arthritis of the spine (DC 5242) and lumbosacral or cervical strain (DC 5237). See also 38 C.F.R. § 4.27 (providing that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). The Veteran's low back disability was rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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 for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2016). The Board notes that, although the rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021, because the amended criteria are not applicable prior to February 2021, they are not relevant as to the issue of the propriety of the reduction in this case and will not be discussed. See 85 Fed. Reg. 230 (Nov. 30, 2020). Importantly, as alluded to above, the RO based the February 2015 rating decision that awarded the 20 rating for the service-connected low back disability on a February 2015 VA examination reflecting that the Veteran's low back flexion was limited to 60 degrees following repetitive motion testing. See February 2015 VA Back Conditions Disability Benefits Questionnaire (DBQ). In turn, the January 2017 reduction was based entirely upon the results of an October 2016 VA spine examination reflecting low back flexion limited to 70 degrees. See October 2016 VA Back Conditions DBQ. The RO determined that this finding demonstrated improvement in the low back disorder. However, despite the VA clinician's findings, the Board finds that the evidence does not reflect that the "improvement" shown on the October 2016 VA examination actually demonstrates an improvement in the Veteran's ability to function under the ordinary conditions of life and work. In this regard, the February 2015 VA examiner noted that the Veteran reported increasing low back pain following prolonged standing, bending, or walking; however, the examiner ultimately concluded that the Veteran's low back degenerative disc disease did not impact his ability to work. See February 2015 VA Back Conditions DBQ. Conversely, the October 2016 VA examiner explicitly determined that the Veteran's lumbar spine disorder impacted his ability to function under the ordinary conditions of life and work in that it "preclude[d] his participation in any physically active vocations or hobbies." See October 2016 VA Back Conditions DBQ. The October 2016 VA examination report thus does not show any improvement under ordinary conditions. Rather, it reflects that, at best, the impairment resulting from the service-connected low back pathology on the Veteran's ability to function under the ordinary conditions of life and work has remained constant, if not increased. Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board finds that the rating reduction was unwarranted, and the 20 percent rating is therefore restored effective the date of reduction. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also 38 C.F.R. § 3.344; Brown, 5 Vet. App. at 421. REASONS FOR REMAND 1. Entitlement to an increased rating for low back degenerative disk disease, currently rated as 20 percent disabling prior to November 8, 2019, and 40 percent thereafter, is remanded. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Pertinent regulations concerning the processing of appeals under VA's legacy system direct that the agency of original jurisdiction (AOJ) must provide a supplemental statement of the case (SSOC) to the appellant and his/her representative when there are any material changes in, or additions to, the information included in the statement of the case (SOC) or any prior SSOC, to include the receipt of additional pertinent evidence. See 38 C.F.R. § 19.31(a), (b)(1). Here, the record reflects that additional VA treatment records and VA examinations pertinent to the Veteran's claim for a higher rating for his low back disorder were associated with his claims file after the issuance of the SSOC in March 2020. See, e.g., CAPRI Records received in October 2020, November 2020, December 2020, and January 2021; October 2020 VA Compensation and Pension (C&P) Examinations Reports. Although the AOJ considered the VA treatment records and VA examinations submitted after the March 2020 SOC in a January 2021 rating decision that, in pertinent part, continued the 40 percent evaluation for the service-connected low back disability, no SSOC has been issued to inform the Veteran of the material changes in, or additions to, the information included in the previous SSOC. In a September 2021 letter, the Board notified the Veteran of the receipt of new, relevant VA medical records and advised him that he had the right to request that the Board remand the appeal back to the agency of original jurisdiction (AOJ) to review the additional evidence before the Board decides the claim. In a November 2021 submission, the Veteran requested that the case be remanded to the AOJ for review of the additional evidence. See November 2021 Additional Evidence Response Form (requesting that the case be sent back to the AOJ). Accordingly, because the Veteran has not waived AOJ review of the additional evidence, and considering the Veteran's explicit request, the Board finds that remand for issuance of an SSOC is warranted. Additionally, as it is clear that the Veteran is receiving ongoing VA treatment for his service-connected low back disability, any outstanding VA treatment records should also be obtained. Finally, as the outcome of the Veteran's claim for a higher rating for his low back disorder would affect the claim of a TDIU, this matter is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the issue is remanded pending adjudication of the Veteran's increased rating claim. The matters are REMANDED for the following action: 1. Make arrangements to obtain all outstanding VA treatment records and associate them with the claims file. 2. After completing any indicated additional development, to include the provision of VA examination(s) if deemed necessary, the Veteran's claims should be re-adjudicated based on the entirety of the evidence, with consideration of all evidence associated with the record since the most recent Supplemental Statement of the Case (SSOC) in March 2020. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided an SSOC and afforded the requisite opportunity to respond before the case is remanded to the Board. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.