Citation Nr: 21011808 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-42 769 DATE: March 2, 2021 ORDER Reduction of the evaluation of the Veteran's low back strain from 40 percent to 10 percent was improper, and restoration of the 40 percent evaluation is warranted, effective from the date of the reduction. REMANDED The issue of entitlement to an evaluation higher than 40 percent for low back strain is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s low back strain has not improved under the conditions of daily life. CONCLUSION OF LAW The criteria for restoration of the 40 percent evaluation for the Veteran's low back strain are met, effective April 1, 2015 (the date of the reduction). 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1980 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2012 increased rating claim. In a January 2015 rating decision, the Agency of Original Jurisdiction (AOJ) reduced the evaluation of the Veteran’s low back strain from 40 percent to 10 percent, effective April 1, 2015. Because the rating assigned for the Veteran’s service-connected back disability was reduced during the pendency of the increased rating claim, the Board must address the propriety of the reduction in its consideration of the proper rating to be assigned for the Veteran’s back disability. In a July 2013 statement, the Veteran raised the issue of entitlement to TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation. Thus, under Rice, the Board has jurisdiction over the Veteran’s TDIU claim and, for the purpose of clarity, has separately captioned the issue above. A Board hearing was held in March 2020. A transcript is of record. Propriety of reduction of the evaluation for low back strain VA’s Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. In VA’s Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a Veteran’s disability claim may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. When considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Prior to reducing a Veteran’s disability rating, VA is required to “comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran’s disability.” Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that such review requires VA 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. Thus, in any case involving a rating-reduction, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also 38 C.F.R. § 3.344(c). The Board notes that at the time of the January 2015 rating decision, a 40 percent rating for the Veteran’s low back strain had been in effect since July 2009; a period of more than five years. Consequently, this rating may not be reduced without compliance with the provisions of 38 C.F.R. § 3.344(a) and (b) regarding stabilization of ratings. See 38 C.F.R. § 3.344 (c); Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). The provisions of 38 C.F.R. § 3.344(a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination upon which an reduction is based was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344(a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344(b). The Veteran submitted a claim for increase in July 2009. At that time, her low back strain was evaluated as 20 percent disabling. In March 2010, the AOJ assigned a 40 percent evaluation, effective July 21, 2009, the date of receipt of her claim for increase. The evidence upon which the higher 40 percent evaluation was based include two VA examination reports. An August 2009 report indicates that the Veteran’s claims file was reviewed. She endorsed daily pain of 4-5/10, exacerbated with any increase in walking or activity. Range of motion testing revealed flexion to 15 degrees, extension to 5 degrees, rotation to 30 degrees bilaterally, and lateral flexion to 20 degrees bilaterally. In December 2009, the same physician reviewed the record. He noted that the marked decrease in range of motion noted on examination in August 2009 might likely be related to muscular pain and spasm, as well as the Veteran’s lumbar spine arthritic condition. He indicated that there might have been an acute exacerbation that produced the decreased range of motion, but that such was speculative. The Veteran submitted another claim for increase in April 2012. On VA examination in October 2012, the examiner indicated that the Veteran did not report flare-ups. Range of motion testing revealed flexion to 85 degrees with pain at 85 degrees, extension to 25 degrees with pain at 25 degrees, lateral flexion to 25 degrees bilaterally with no objective evidence of pain, and rotation to 25 degrees bilaterally with no objective evidence of pain. The examiner noted that there was no additional limitation of motion following repetitive use, and no functional loss or impairment. He also indicated that there was no guarding or muscle spasm. In June 2013, the AOJ proposed to reduce the evaluation of the Veteran’s low back strain to 10 percent, based on the October 2012 examination. In July 2013, the Veteran submitted argument to the effect that her back disability had not improved; rather, she stated that she could barely get around without a cane. She also noted that she was in constant pain, despite taking various medications for its control. In January 2015, the reduction was carried out. In May 2015, a VA provider indicated that the Veteran’s back disability had not improved. She noted that she based this determination on evaluation of the Veteran as well as review of previous records. She indicated that the Veteran had daily moderate to severe pain. Having carefully reviewed the record, the Board concludes that the Veteran’s low back strain did not improve so as to warrant a reduction from 40 percent to 10 percent. Although the single VA examination upon which the reduction was based reflected significantly better range of motion, the examiner did not address records showing the Veteran’s consistent complaints of debilitating pain and functional impairment. Moreover, the burden rests with VA to show improvement of the disability at issue. In this case, VA has not been its burden. The Veteran credibly argues that she continues to experience significant daily pain that interferes with her ability to carry out certain activities of daily living. Although the Veteran’s low back disability may not have been as debilitating during the October 2012 VA examination, the record reflects that she has experienced exacerbations that significantly limit her motion and functional ability. The Board also notes that the May 2015 VA record indicates the nurse practitioner’s statement that the Veteran’s low back disability had not improved. As such, improvement has not been shown under the conditions of daily life and the 40 percent rating for low back strain is restored. REASONS FOR REMAND Entitlement to an evaluation higher than 40 percent for low back strain During her March 2020 hearing, the Veteran testified that her low back disability had worsened. She indicated that she had constant pain, and that she sometimes remained in bed due to her low back symptoms. She also described pain radiating from her waist down her bilateral lower extremities to her feet. Considering the Veteran’s report of worsening, and her description suggesting neurological manifestations, the Board concludes that a current examination is necessary. The Board also observes that the Veteran reported during her hearing that she received her regular medical treatment through the Saginaw VA Medical Center (VAMC). The record contains VA treatment records dated through July 2017. The AOJ should obtain outstanding VA treatment records and add them to the claims file. TDIU As noted, entitlement to TDIU has been raised by the Veteran in conjunction with her claim for increase. Further development and adjudication of the increased rating claim may provide evidence in support of the claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding relevant VA and/or private treatment records for the period from July 2017 to the present. 2. Thereafter, schedule the Veteran for VA examinations to determine the severity of her service-connected low back disability. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings referable to the Veteran’s low back disability should be reported in detail, including range of motion (ROM) testing. The examiner should set forth the Veteran’s range of motion findings and note any pain, pain on use, weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the spine due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should also be noted. The examiner should also identify all neurological manifestations of the Veteran’s back disability, including in the Veteran’s lower extremities and indicate whether such manifestations are related to the Veteran’s service-connected low back disability. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 3. Then, after conducting all indicated development necessary, readjudicate the Veteran’s claims of entitlement to a higher evaluation for low back disability and TDIU, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.