Citation Nr: 21007507 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-06 133 DATE: February 9, 2021 ORDER The reduction of the disability rating for degenerative arthritis of the spine with lumbar spinal stenosis and intervertebral disc syndrome (IVDS) from 40 percent to 20 percent disabling was improper and restoration of the 40 percent rating is warranted, effective February 1, 2019. REMANDED The claim of entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine with lumbar spinal stenosis and IVDS is remanded. FINDINGS OF FACT 1. The 40 percent disability rating for the Veteran’s service-connected degenerative arthritis of the spine with lumbar spinal stenosis and IVDS was in effect for more than five years at the time of the November 2018 rating decision that decreased the rating to 20 percent. 2. The evidence does not show that at the time of the reduction, there was actual improvement of the Veteran’s degenerative arthritis of the spine with lumbar spinal stenosis and IVDS, to include in the ability to function in the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the disability rating for arthritis of the spine with lumbar spinal stenosis and IVDS from 40 percent to 20 percent disabling, effective February 1, 2019, was improper; restoration of the 40 percent rating is warranted as of that date. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant was a member of the Pennsylvania Amy National Guard from February 1960 to January 1966. His service included an initial period of active duty for training (ACDUTRA) from March 1960 to September 1960 and later periods of ACDUTRA and inactive duty for training (INACDUTRA). Service connection for a low back disorder was established upon Board decision in April 2005. When the Veteran filed a claim for an increased rating in January 2018, a 40 percent disability rating had been in effect for his low back disability since 2005. A July 2018 proposal to decrease the 40 percent rating to 20 percent was promulgated in a November 2018 rating decision. The 20 percent rating was assigned, effective from February 1, 2019. The Veteran submitted a timely notice of disagreement (NOD) as to the reduction. In a November 2020 rating decision, the 20 percent disability rating was increased to 40 percent, effective November 16, 2020. Rating reductions claims are separate from increased ratings claims. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the rating reduction resulted from adjudication of the Veteran’s claim of entitlement to an increased rating for his service-connected lumbar spine disability, and he has continued to request a higher rating even after the reduction was finalized. See, e.g., the January 2021 Brief Presentation. Therefore, both the Veteran’s claim of entitlement to an increased rating for his lumbar spine disability and the propriety of the rating reduction are on appeal. The propriety of rating reduction is addressed immediately below. The claim for a rating in excess of 40 percent for the service-connected lumbar spine disorder is REMANDED for additional development. Propriety of Rating Reduction The Veteran’s service-connected degenerative arthritis of the spine with lumbar spinal stenosis and IVDS has been rated under Diagnostic Codes (DC) 5242-5243 (degenerative arthritis and IVDS, respectively). Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2019). Also applicable is DC 5010. This code applies to traumatic arthritis, and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a , DC 5003, which provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate DC for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. A lumbosacral strain is rated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, DC 5237 (2019), and as amended, effective February 7, 2021 (2021). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 30 percent evaluation pertain only to the cervical spine and are therefore not applicable in this case. A 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a (2019) and as amended, effective February 7, 2021 (2021). In a July 2018 rating decision, the RO proposed to reduce the rating for the Veteran’s lumbar spine disability to 20 percent. The Regional Office (RO) relied primarily on the results from an April 2018 VA examination. The Veteran was informed of this proposal in writing on July 12, 2018 and given 60 days to respond. The disability rating was decreased in a November 2018 rating decision. The effective date of the reduction was February 1, 2019. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time that the reduction was effectuated. However, medical evidence dated after the reduction was effectuated may be considered for the limited purpose of determining whether the disability demonstrated actual improvement. Dofflemyer, supra. Nonetheless, the Board emphasizes that such “after-the-fact” evidence may not be used to justify an improper reduction. Further, a rating reduction must also be based on adequate examinations. Tucker v. Derwinski, 2 Vet. App. 201 (1992). A rating reduction requires an inquiry as to “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). Accordingly, it must be determined that an improvement in a disability actually occurred, and that such improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2019). Where a rating has been in effect for five years or more, as in this case, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher disability rating. Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (2019). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. See Kitchens v. Brown, 7 Vet. App. 320 (1995). In Kitchens, 7 Vet. App. at 324, the United States Court of Appeals for Veterans Claims (Court) stated that, “[i]n order for the VA to reduce certain service-connected disability ratings, the requirements of 38 C.F.R. § 3.344 (a) and (b) must be satisfied.” This regulation requires that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417 (1993). Failure to consider and apply the applicable provisions of 38 C.F.R. § 3.344 (2019) renders a rating decision void ab initio because the error is not in accordance with the law. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, supra. The Veteran’s lumbar spine disability rating was in effect for more than five years at the time of the reduction. Therefore, the provisions of 38 C.F.R. § 3.344(a)-(b) apply. When examined by VA in September 2003, the Veteran complained of low back pain radiating into the lower right extremity. Range of motion (ROM) showed forward flexion to 38 degrees. A July 2005 magnetic resonance imaging (MRI) testing noted that the Veteran had lumbar spondylosis with spinal stenosis primarily at the L4-5 level with compromise of the central canal. Private medical records reflect that the Veteran underwent physical therapy from August to November 2005. In September 2005, the Veteran was only able to bring his fingertips to the knee area. In October 2005, he was able to bring his fingertips to the mid shin. Subsequent records show forward flexion to 15 or 20 degrees. A private examiner reported in November 2005 that the Veteran had increased back complaints with muscle spasms. When examined by VA in July 2006, the Veteran had radiating back pain. His condition had progressively worsened. He had flareups about every 3 to 4 months that lasted longer than 2 weeks. His activity level had severely decreased. Range of motion (ROM) showed forward flexion to 48 degrees with pain beginning at 30 degrees. Initially, in a September 2006 rating decision, the RO concluded that the Veteran’s severe limitation of motion shown on examination met the criteria for a 40 percent disability rating under DC 5242 and granted an increased disability rating of 40 percent rating for his lumbar spine disability and assigned an effective date of November 17, 2005. Ultimately, in an October 2009 Board decision, it was found that an earlier effective date of September 1, 2005, was warranted for the award of a 40 percent rating for the low back disability. During a February 2013 VA examination, the Veteran experienced low back pain and flareups that occurred about twice per month. ROM testing showed forward flexion to 40 degrees and extension to 15 degrees. The 40 percent rating was continued upon rating decision in April 2013. As already stated, the Veteran filed a claim for an increased rating in January 2018. When examined in April 2018, the Veteran reported constant lower back pain with radiation that was 7 out of 10 on the pain severity scale. This increased to 8 out of 10 at times. He could not stand for over 20 minutes and could not sit for over 25. Walking further than one block caused an increase in his back pain. Bending and twisting also increased his complaints. ROM testing results showed forward flexion to 45 degrees with extension to 10 degrees. Right and left lateral flexion were to 10 degrees and right lateral rotation was to 20 degrees with left lateral rotation to 25 degrees. For any activities that would require full or near full motion, those activities would be limited. The Veteran preferred no to perform repetitive use testing due to the concern that such might result in a flareup which might last for 2-3 months. A July 2018 proposal to decrease the 40 percent rating in effect for the low back disorder to 20 percent was promulgated in a November 2018 rating decision. The 20 percent rating was assigned, effective from February 1, 2019. The July 2018 rating decision noted that improvements, primarily in the Veteran’s forward flexion ROM, shown in 2013 were also shown in 2018. Thus, sustained improvement was demonstrated resulting in the reduced rating. Even assuming for the sake of argument that the VA medical examinations did show that the Veteran’s low back disability fell within the criteria for a 20 percent rating, that fact, in and of itself, would not justify the reduction. As set forth above, in order to warrant a reduction, the evidence must show that the Veteran’s service-connected low back disorder materially improved overall, resulting in an improvement in his ability to function under the ordinary conditions of life and work. In this case, the Boards finds that the record is not sufficient to support a finding that the Veteran’s disability actually improved as of February 1, 2019, resulting in an improvement in his ability to function under the ordinary conditions of life and work. The examiners recorded no such finding and the Veteran has reported that he perceives no improvement in his symptomatology. Under these circumstances, the Board finds the evidence before the RO at the time of the November 2018 rating reduction decision did not show an actual improvement in the Veteran’s service-connected low back disorder warranting the reduction from 40 percent to 20 percent. In sum, the RO reduced the Veteran’s rating on the basis of medical information that did not clearly show any improvement observed at the time of 2013 and 2018 VA examinations. The Veteran’s ROM was still significant, and he complained of increased and constant low back pain, resulting in difficulty whether sitting or standing. There was no apparent improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Accordingly, since the burden is on VA to show that a rating reduction was warranted, and, for the reasons discussed above, VA failed to meet this burden, the 40 percent rating must be restored. Dofflemeyer, 2 Vet. App. at 277 (holding that where VA has reduced a veteran’s disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required). REASONS FOR REMAND Entitlement to a Rating in Excess of 40 Percent for Degenerative Arthritis of the Spine with Lumbar Spinal Stenosis and IVDS is remanded. Additional VA examination was conducted in November 2020. The Veteran continued to report constant low back pain (sharp and burning) with radiation into the lower extremities. His balance was off, and he used a cane. The pain was worse with standing or walking. ROM testing showed forward flexion from 5 degrees of extension to 40 degrees of flexion. After repetitive testing there was limitation to forward flexion to 30 degrees, and functional loss due to pain, weakness, fatigability, or incoordination which limited ROM from 10 degrees of extension to 20 degrees of forward flexion. There was guarding and/or muscle spasm resulting in abnormal gait or abnormal spine contour. In a November 2020 rating decision, the RO increased the 20 percent disability rating for the lumbar spine disorder to 40 percent, effective the date of the VA examination – November 16, 2020. It is argued that a rating in excess of 40 percent is warranted, particularly pursuant to the IVDS criteria. See, e.g., the January 20201 appellate brief. The Board must reconsider this case in light of Correia v. McDonald, 28 Vet. App. 158 (2016). Correia provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2019) requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. The Board has reviewed the findings from the Veteran’s most recent November 2020 VA examination for his lumbar spine disability and sees that these findings do not meet the specifications of Correia. Specifically, the examiner did not address whether the ROM was conducted on active or passive motion and weight-bearing or nonweight-bearing. Given this, the Board is not satisfied that the examination findings are adequate for a contemporaneous rating. Therefore, an additional examination is necessary under 38 C.F.R. § 3.159(c)(4) (2019). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, even if not statutorily obligated to, it must provide an adequate one, else, notify the claimant why one cannot or will not be provided). The matter is REMANDED for the following action: 1. After securing any necessary consent form from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. 2. Then, afford the Veteran appropriate VA examination to determine the current severity of his service-connected connected lumbar spine disorder, to include all associated residuals. The electronic claim file must be made available to the examiner, and he or she must specify in the examination report that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail. The examiner must first record the range of active and passive motion of the Veteran’s spine on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same ROM studies must then be repeated after at least three repetitions and after any appropriate weight bearing exertion. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. Then, after reviewing the Veteran’s complaints and medical history, the examiner must render an opinion as to the extent to which he experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected lumbar spine. The examiner must also identify all currently present neurological and orthopedic manifestations of the Veteran’s spine, and the examiner is to address: a) Any incapacitating episodes, necessitating bed rest and treatment by a physician, and the total duration of the incapacitating episodes during the past 12 months; b) Whether there is favorable or unfavorable ankylosis of the entire spine; and, c) The presence and severity of neurological abnormalities of the right and left lower extremities associated with the Veteran’s service-connected spine disability must be addressed. (He is separately service-connected for his right lower extremity (RLE) neuropathy and left lower extremity (LLE) radiculopathy.) A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If upon completion of the above action any claim remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.