Citation Nr: 21010332 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-03 546 DATE: February 24, 2021 ORDER Restoration of a 20 percent rating for cervical spine degenerative changes, effective April 3, 2013, is granted. Restoration of a 40 percent rating for lumbosacral strain with degenerative arthritis, effective April 3, 2013, is granted. Entitlement to a rating in excess of 20 percent for cervical spine degenerative changes is denied. Entitlement to an evaluation in excess of 40 percent for lumbosacral strain with degenerative arthritis is denied. FINDINGS OF FACT 1. The July 2014 rating decision reduced the rating of the Veteran's service-connected lumbosacral strain with degenerative arthritis from 40 percent to 10 percent, effective April 3, 2013, under the current criteria for rating lumbar spine disabilities. 2. The July 2014 rating decision reduced the rating of the Veteran’s service-connected cervical spine degenerative changes from 20 percent to 10 percent, effective April 3, 2013, under the current criteria for rating cervical spine disabilities. 3. The reductions made in the July 2014 rating decision applied new criteria not previously used and there was no consideration of whether improvement was shown. 4. Throughout the appeal period, the Veteran’s cervical spine disability has not manifested with forward flexion more nearly approximating 15 degrees or less, even with consideration of functional impairment or IVDS with incapacitating episodes lasting at least four weeks. 5. Throughout the appeal period, the Veteran’s lumbar strain with degenerative arthritis has not manifested with ankylosis or IVDS with incapacitating episodes lasting at least six weeks. CONCLUSIONS OF LAW 1. The July 2014 rating decision reducing a 20 percent rating for cervical spine degenerative changes to 10 percent effective April 3, 2013, is void ab initio. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.951. 2. The July 2014 rating decision reducing a 40 percent rating for lumbosacral strain with degenerative arthritis to 20 percent effective April 3, 2013, is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.951. 3. The criteria for a rating in excess of 20 percent for cervical spine degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5243. 4. The criteria for a rating in excess of 40 percent for lumbosacral strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5243.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1991 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the four issues on appeal, as well as entitlement to a total disability rating based on individual unemployability (TDIU), for development. In a July 2020 rating decision, the RO granted entitlement to TDIU effective May 4, 2014, the date the Veteran last worked. That issue is no longer before the Board. Rating Reductions 1. Restoration of a 20 percent rating for cervical spine strain with degenerative changes effective April 3, 2013, is granted. 2. Restoration of a 40 percent rating for lumbosacral strain with degenerative arthritis of the spine effective April 3, 2013 is granted. The Veteran seeks restoration of a 20 percent rating for his cervical spine disability and a 40 percent rating for his lumbar spine disability, both of which were effectively reduced beginning April 3, 2013. By way of procedural history, a May 1995 rating decision granted service connection for cervical spine disability and assigned a noncompensable (0 percent) evaluation under DC 5290. The RO also granted service connection for chronic lumbar strain and assigned a noncompensable (0 percent) evaluation under DC 5295. Both ratings were effective from November 9, 1994. In a January 2000 rating decision that effectuated a June 1999 Board decision, the RO assigned an initial rating of 40 percent for the lumbar spine under DC 5295 and a 20 percent initial rating for the cervical spine under DC 5290. In April 2013, VA received the Veteran’s claim for increased ratings for the lumbar and cervical spine disabilities. In the July 2014 rating decision on appeal, the RO indicated that it was granting service connection “for lumbosacral strain with degenerative arthritis of the spine (previously rated as chronic lumbosacral strain)” and for “cervical spine strain with degenerative changes (previously rated as chronic cervical strain).” The RO assigned a 20 percent rating effective April 3, 2013, for this lumbar spine disability under DC 5243 based on a combined range of motion of the lumbar spine greater than 120 degrees but not greater than 235 degrees, or forward flexion of the thoracolumbar spine greater than 50 degrees but not greater than 85 degrees, and discontinued the prior rating under DC 5295. The RO also assigned a 10 percent rating for the cervical spine disability under DC 5010-5243 effective April 3, 2013, based on a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, and discontinued the prior rating under DC 5290. Under the rating criteria currently in effect for the lumbar and cervical spine, the RO also assigned separate evaluations of 20 percent for radiculopathy of the left and right lower extremities and separate evaluations of 20 percent for radiculopathy of the left and right upper extremities. In this regard, the RO stated that “[e]valuating your lumbar spine disability under the new rating criteria would be beneficial to you as we now can grant a separate evaluation for the radiculopathy.” A similar statement was made regarding the cervical spine. The rating reductions in this case are void ab initio. Congress has provided that a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When an AOJ reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Because the Veteran's combined rating actually increased by reason of the determinations made in the July 2014 decision (from a combined rating of 70 percent from September 28, 2010 to a 80 percent combined rating effective from April 3, 2013), there was no requirement to provide notice to the Veteran of the proposed reduction in disability ratings. Nonetheless, the Board observes that the 40 percent and 20 percent ratings in effect for the Veteran's lumbar and cervical spine disabilities were awarded under former Diagnostic Codes 5295 (lumbosacral strain) and 5290 (cervical strain) respectively and had been in effect for greater than 5 years. Since those initial ratings were assigned, the rating criteria for the spine were revised and updated. The RO’s reduction of the Veteran's ratings in the July 2014 rating decision was based solely on the revised rating criteria being used to assess the severity of the cervical and lumbar spine. The RO did not base either rating on a determination as to whether there was any improvement shown within the context of the former rating criteria. Rather, the RO assigned the reduced respective 20 and 10 percent ratings under current Diagnostic Codes 5235 and 5237, which utilizes the General Rating Formula for Diseases and Injuries to the Spine. Any reduction in a rating based upon the application of the new or revised criteria is expressly prohibited, without medical evidence of improvement. See 38 C.F.R. § 3.951(a); see also Fugere v. Derwinski, 972 F.2d 331, 335 (1992) (holding that a section protecting Veterans from reduced disability ratings permitted a Veteran to retain his previously determined disability rating). The RO’s application of new criteria to reduce the Veteran's lumbar spine evaluations from 40 percent to 20 percent and his cervical spine evaluation from 20 percent to 10 percent, using the new criteria set forth in Diagnostic Codes 5235 and 5237, is prohibited. In short, the RO improperly reduced the evaluations based on the new regulations for rating a back and cervical spine disorder instead of the regulations in effect at the time of previously determined disability evaluations. Moreover, the RO failed to discuss whether any improvement occurred, much less how that improvement was shown by the record to be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The Veteran's 40 percent and 20 percent rating for his respective lumbar and cervical spine disabilities were both in effect for more than 5 years, and in fact for nearly 20 years. The provisions noted in 38 C.F.R. § 3.344(a) and (b) are applicable, which require a showing of material improvement maintained under the ordinary conditions of life. Therefore, the Board finds that the reduction in this case is void ab initio. Restoration of the 40 percent and 20 percent ratings is warranted. Increased Ratings 3. Entitlement to a rating in excess of 20 percent for cervical degenerative changes By way of the Board’s restoration above, the Veteran’s cervical degenerative changes disability is currently rated 20 percent for the entire appeal period. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Treatment records reflect persistent neck pain. December 2013 private chiropractic notes show the Veteran reported pain at the base of neck and mid-neck area. Moderate limitation was noted in cervical flexion, extension, rotation, and lateral flexion. The Veteran was afforded a VA examination in June 2014 and reported increased frequency of cervical pain and increased severity of cervical pain since his previous VA examination. He reported that lifting heavy objects and rapid movement caused increased pain. Range of motion testing revealed forward flexion to 45 degrees or greater with no objective evidence of painful motion, extension to 40 degrees with objective evidence of painful motion beginning at 30 degrees, and bilateral lateral flexion and bilateral lateral rotation to 30 degrees or greater with objective evidence of painful motion beginning at 25 degrees, right lateral rotation to 70 degrees, and left lateral rotation to 60 degrees. The Veteran performed repetitive use testing with no additional loss of range of motion. Localized tenderness or pain to palpation for was shown on examination. However, guarding or muscle spasm, and muscle atrophy was not found. Intervertebral disc syndrome was found on examination, but no incapacitating episodes over the previous 12 months were noted. In September 2014, the Veteran underwent a private internal medicine evaluation. Physical examination of the cervical spine showed flexion to 40 degrees, extension to 25 degrees, bilateral lateral flexion to 20 degrees, right rotary movement to 70 degrees, and left rotary movement to 60 degrees. The Veteran was afforded a VA examination in September 2019. He reported intermittent pain at the base of the neck and stiffness. Range of motion testing revealed forward flexion to 40 degrees or greater with no objective evidence of painful motion, extension to 40 degrees with objective evidence of painful motion beginning at 30 degrees, and bilateral lateral flexion to 30 degrees, right lateral rotation to 70 degrees, and left lateral rotation to 60 degrees. No change in range of motion with passive exercise was noted. The Veteran performed repetitive use testing with no additional loss of range of motion. The Veteran reported that inactivity and activity could trigger a flare up. He stated the severity of the pain reached a level of 8 out of 10, and occurred 3 to 4 times a week. He treated flare ups with rest, and sometimes with medication. The examiner opined that because the severity of the Veteran’s flare-ups was unpredictable, it was not possible to provide an estimate in a quantifiable loss of range of motion. She assessed a moderate functional impact from the Veteran’s flare ups. The preponderance of the evidence is against a rating in excess of 20 percent for cervical degenerative changes. As indicated above, forward flexion of the cervical spine to 15 degrees or less is required for a 20 percent rating, the next higher rating for the cervical spine under the General Rating Formula for Diseases and Injuries of the Spine. The evidence of record demonstrates that, at worst, the Veteran’s forward flexion of the cervical spine is limited to no less than 40 degrees and the combined range of motion of the cervical spine is limited to 230 degrees, even considering functional impairment. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss from flare-ups due to increased pain levels. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he experiences increased pain several times a week would not result in limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees. In this respect, the Board gives weight to the September 2019 VA examiner who estimated moderate limitation due to flare-ups. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Regarding neurological impairment, the Veteran has already been granted service connection for cervical radiculopathy in the bilateral upper extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for cervical degenerative changes. The benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative arthritis By way of the Board’s restoration above, the Veteran’s lumbosacral strain with degenerative arthritis is currently rated 40 percent for the entire appeal period. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Treatment records reveal persistent low back pain complaints. In December 2013, the Veteran presented for follow up of low back pain. Physical examination revealed moderate limitation in range of motion and pain in the low back. The Veteran was afforded a VA examination in June 2014 and reported increased frequency of lower back pain and increased severity of pain since his previous VA examination. Range of motion testing revealed forward flexion to 70 degrees or greater with objective evidence of painful motion at 60 degrees. The Veteran performed repetitive use testing with no additional loss of range of motion. Intervertebral disc syndrome was noted on examination, but no incapacitating episodes over the previous 12 months were reported. In September 2014, the Veteran underwent an internal medicine examination. He reported continued low back pain, with at times stabbing pain with an intensity of 9 out of 10. Physical examination of the lumbar spine revealed forward flexion limited to 40 degrees. The Veteran was afforded a VA examination in September 2019. He reported increasing pain and stiffness in his lower back and mid back. Range of motion testing revealed forward flexion to 60 degrees. No change in range of motion with passive exercise was noted. The Veteran performed repetitive use testing with no additional loss of range of motion. The Veteran reported that inactivity and activity could trigger a flare up. He stated the severity of the pain reached a level of 10 out of 10, and occurred 1 to 3 times a week. He treated flare ups with rest, injections, and chiropractic services. The examiner opined that because the severity of the Veteran’s flare-ups was unpredictable, it was not possible to provide an estimate in a quantifiable loss of range of motion. She assessed a moderate functional impact from the Veteran’s flare ups. The evidence of record does not support the assignment of a rating in excess of 40 percent rating throughout the appeal period as favorable ankylosis of the entire thoracolumbar spine is not demonstrated. At the July 2014 VA examination, initial range of motion testing showed forward flexion to 70 degrees, but there was objective evidence of pain starting at 60 degrees. Additionally, a September 2014 internal medicine evaluation of the lumbar spine showed more limited forward flexion to just 40 degrees. In light of the Veteran’s consistent report of flare-ups, and the objective evidence of pain and limited range of forward flexion, but lack of favorable ankylosis, the lumbar strain disability more nearly approximates the criteria for no higher than the current 40 percent rating throughout the entire appeal period. Because the 40 percent evaluation is the maximum for limitation of motion without ankylosis, further consideration of DeLuca v. Brown is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The evidence fails to demonstrate the Veteran was prescribed bed rest by a physician for IVDS of his lumbar spine for a period of six weeks or more during the appeal. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy and the competent evidence of record is against a finding that he has any other neurological abnormality associated with his lumbar spine disability. Based on the foregoing, entitlement to a rating in excess of 40 percent is not warranted. The benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, Associate 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.