Citation Nr: 21011400 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-23 770 DATE: March 1, 2021 ORDER The reduction from a 40 percent rating to a 20 percent rating for service-connected post-lumbar laminectomy syndrome was not proper, and the 40 percent rating is restored effective October 1, 2014. FINDING OF FACT The Veteran’s back disability did not show actual improvement under the normal circumstances of life and work CONCLUSION OF LAW The criteria for restoration of the 40 percent rating for post-lumbar laminectomy syndrome, effective October 1, 2014 have been met. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1997 to November 2012. The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge in January 2021. The reduction from a 40 percent rating to a 20 percent rating for service-connected post-lumbar laminectomy syndrome was not proper, and the 40 percent rating is restored effective October 1, 2014. By way of history, in May 2012, the Veteran was initially granted service connection and assigned a 40 percent evaluation for his post-lumbar laminectomy syndrome. The RO proposed a decreased of the Veteran’s post-lumbar laminectomy syndrome in January 2014. Thereafter, the September 2014 rating decision decreased the Veteran’s 40 percent disability evaluation to a rating of 20 percent disabling, effective October 1, 2014. The Board concludes that the reduction from 40 percent to 20 percent for the Veteran’s post-lumbar laminectomy syndrome was improper. In support, the Veteran challenges the adequacy of the VA examination upon which the reduction was based. He also testified that he has had severe pain for you he takes multiple medications and that he tried to accomplish a greater degree of range of motion than he could do without pain. The Veteran also cited his back surgeries. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Upon review, the reduction was solely based on the results of a January 2014 VA examination which the Board finds inadequate due to inconsistency internally and with the claims record. For example, while the VA examiner documented that the Veteran’s did not have flare-ups or functional loss after repetitive testing, the examiner also documented that the Veteran experiences functional loss and additional limitation in range of motion with symptoms of less movement than usual, pain on movement, interference with sitting, standing, and/or weight-bearing, and lack of endurance with repetitive movement. At that time, the Veteran reported experiencing daily pain, managed by oxycontin, oxycodone, Zanaflex and Flector patch, and experiences pain that is aggravated by sitting, standing, walking, bending, twisting. The Veteran is also managed by a pain specialist. Additionally, contrary to the findings in the January 2014 VA examination, the record reflects the Veteran’s lay statements which describe symptoms of pain on movement that impact range of motion to the extent that it impacts his daily functions. See June 2014 Medical Treatment Records; see also November 2014 Notice of Disagreement. Further, the Veteran explained that while he is in constant pain, the January 2014 VA examination occurred on a “good day”, highlighting the limitations of the brief examination in adequately documenting the Veteran’s physical statement, absent consideration of the remaining record, including the need for significant pain medication to alleviate symptoms and improve range of motion. Thus, while the examiner correctly documented that the Veteran is in “constant pain”, the VA examiner did not adequately assess the presence of flare-ups, considering the record as well as the Veteran’s statements which further demonstrates the occurrence of “flare-ups” that further limit the Veteran’s range of motion. In this regard, the Board notes that the United States Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017) emphasized additional requirements that must be met for examinations to be adequate. The Court stated that examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups. The examiner should estimate a veteran’s functional loss due to flare-ups based on all the evidence of record, including the lay information, or sufficiently explain why the examiner cannot do so. Therefore, given the holding in Sharp, the January 2014 VA examination is inadequate. Lastly, the findings from the January 2014 VA examination report does not support that there has been an actual improvement in the Veteran’s back disability. The Board notes that in order for the Veteran’s rating to be properly reduced, it must be determined not only that an improvement in the disability level 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, which was not demonstrated in the January 2014 VA examination. See Brown, 5 Vet. App. at 421. Specifically, the Veteran explained that his pain has not improved, but has in fact increased. See November 2014 Notice of Disagreement. As stated above, the Veteran also explained that he is in constant pain, and that his back disability requires monthly injections of medications as well as oral medication. Id.; See also January 2014 VA examination. Thus, the rating reduction was not supported by the preponderance of the evidence. 38 U.S.C. § 5107 (a). Accordingly, in light of the competent lay and medical evidence, the Board finds that the weight of the evidence does not establish sustained improvement in the Veteran’s back disability under the ordinary conditions of life and work. As such, restoration of a 40 percent rating for the Veteran’s post-lumbar laminectomy syndrome from October 1, 2014, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.