Citation Nr: 21014974 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-15 384 DATE: March 16, 2021 ORDER The reduction in the disability rating for a lumbar sprain with degenerative arthritis, anterolisthesis of the L4, spondylosis of L3-L4, and intervertebral disc syndrome (IVDS) from 40 percent to 20 percent was improper, and restoration of the prior rating is granted. FINDINGS OF FACT 1. An October 2014 rating decision reduced the evaluation for the Veteran’s lumbar sprain with degenerative arthritis, anterolisthesis of the L4, spondylosis of L3-L4, and IVDS from 40 percent to 20 percent, effective January 1, 2015. 2. There was no actual improvement in the Veteran’s disability level and ability to function under the ordinary conditions of life and work due to his lumbar sprain with degenerative arthritis, anterolisthesis of the L4, spondylosis of L3-L4, and IVDS since the evidence on which the prior rating was based. CONCLUSION OF LAW The reduction in the disability rating for lumbar sprain with degenerative arthritis, anterolisthesis of the L4, spondylosis of L3-L4, and IVDS from 40 percent to 20 percent was not proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to November 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In a May 2010 rating decision, the RO increased the Veteran’s lumbar sprain disability rating from 20 percent to 40 percent, effective January 13, 2010. By way of November 2013 and December 2013 rating decisions, the RO proposed to decrease the 40 percent rating to 20 percent. A notification letter to this effect was issued to the Veteran on December 30, 2013. In an October 2014 rating decision, the disability rating assigned for the lumbar sprain was decreased from 40 percent to 20 percent, effective January 1, 2015. The Board denied the claim on appeal in an April 2019 decision, which the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In February 2020, pursuant to a January 2020 joint motion for remand filed by the parties to this matter, the Court vacated the Board’s decision and remanded the claim for additional consideration. In September 2020, the Board remanded the claim for further development. The case is again before the Board for appellate review. Rating Reduction Where a reduction in evaluation of a service-connected disability 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. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, 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). However, VA’s General Counsel has held that the provisions of 38 C.F.R. § 3.105 (e) do not apply where there is no reduction in the overall amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). The rating reduction in this case complies with the due process requirements with respect to the lumbar spine. That is, in November 2013, the RO proposed reduction of evaluation for the Veteran’s lumbar spine disability. A December 2013 notification letter sent at that time, informed the Veteran that he had 60 days to present additional evidence showing that compensation should be continued at the prior level and that he could request a predetermination hearing. The Veteran then requested a predetermination hearing. Subsequently, an informal conference hearing was held, as the Veteran waived a formal hearing. At that time, the RO determined that another examination of the Veteran’s lumbar spine was necessary before a final determination regarding reduction could be imposed. A VA examination was held on October 8, 2014. The RO issued a rating decision on October 25, 2014 reducing the lumbar spine disability from 40 percent to 20 percent, effective January 1, 2015. In light of this procedural history, the Board finds that the RO complied with the procedures required under 38 C.F.R. § 3.105 (e). Thus, the analysis proceeds to whether the reduction was factually warranted. A rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155 (2012); Greyzck v. West, 12 Vet. App. 288 (1999). For ratings that have been in effect for five years or more, which is not the case here, reduction is warranted when reexamination discloses sustained material improvement. 38 C.F.R. §§ 3.344 (a-b). Examinations thus usually are the comparison point for determining whether there has been improvement. Collier v. Derwinski, 2 Vet. App. 247 (1992); Hohol v. Derwinski, 2 Vet. App. 169 (1992). Those examinations forming the basis for a reduction must be adequate. Faust v. West, 13 Vet. App. 342 (2000); Tucker v. Derwinski, 2 Vet. App. 201 (1992). Nevertheless, the Court has stated that certain regulations “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.” Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). With respect to ratings that have been in effect for less than 5 years, as in this case, 38 C.F.R. § 3.344 (c) requires improvement before a rating is reduced. Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the rating. In Brown, the Court articulated three questions that must be addressed in determining whether a rating reduction is warranted by the evidence. First, a rating reduction case requires ascertaining “whether the evidence reflects an actual change in the disability.” Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined whether the improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. The reduction in the disability rating for lumbar sprain with degenerative arthritis, anterolisthesis of the L4, spondylosis of L3-L4, and IVDS from 40 percent to 20 percent Again, the Veteran contends that the reduction from 40 percent to 20 percent for his service-connected lumbar sprain disability was improper. The Veteran’s 40 percent rating was initially based on a VA examination performed in March 2010. At that time, the Veteran reported that he experienced low back pain, which occurred constantly. The Veteran also reported that during flare-ups, he experienced functional impairment which was described as pain and limitation of motion of the joint which he described as bending. The Veteran treated his pain with medication. The Veteran further reported four incapacitating episodes over the past twelve months. Upon examination, the Veteran’s lumbar spine disability reflected forward flexion to 30 degrees with pain beginning at that point, extension to 10 degrees with pain at that point, bilateral lateral flexion to 15 degrees, and bilateral rotation to 15 degrees. No additional degrees of limitation were noted. The lumbar spine sensory function was impaired. Diagnostic testing showed degenerative arthritis, and the examiner noted a new diagnosis of degenerative arthritis of the lumbar spine; anterolisthesis of L4 and minimal spondylosis of the L3-4 with limited motion. The examiner also rendered a diagnosis of intervertebral disc syndrome with degenerative arthritis changes with complications of bladder dysfunction and erectile dysfunction. Functional limitations included that of frequent bending, stooping, and crawling. The Veteran was then afforded a VA examination in September 2013, at which time the examiner noted diagnoses of lumbar sprain with degenerative arthritis, anterolisthesis of L4, minimal spondylosis of L3-4; urine incontinence associated with degenerative arthritis, lumbar spine; erectile dysfunction associated with degenerative arthritis, lumbar spine; and IVDS affecting the left sciatic nerve. Range of motion testing revealed forward flexion to 70 degrees with pain starting at that point, extension to 15 degrees with pain starting at that point, right and left lateral flexion of 20 degrees, right lateral rotation of 25 degrees, and left lateral rotation of 20 degrees. There was no change noted after repetitive use testing. The Veteran reported flare-ups and described them as “constant back pain radiating down to his left lower extremity.” Although the Veteran reported flare-ups, the examiner opined that there was no additional functional loss due to pain, weakness, fatigable, or incoordination during flare-ups of after repeated use over time. Functional loss and/or functional impairment of the back included less movement than normal and pain on movement. The Veteran also had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine which was described as tenderness of the low back area. The Veteran also had guarding or muscle spasms which resulted in an abnormal gait. Muscle strength testing was all normal. No evidence of muscle atrophy or ankylosis was found. The examiner also noted that the Veteran had IVDS, but that there were no incapacitating episodes over the past twelve months. The Veteran used a brace as a normal mode of locomotion on a regular basis. Subsequent to the proposed reduction, the Veteran underwent another VA examination in October 2014. At the time of the examination, the Veteran reported functional limitation with lifting, pulling, and prolonged sitting. Range of motion testing revealed forward flexion of 55 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees. While pain was noted during this exam, it did not cause additional limitation of motion. The examiner did note that pain caused functional loss in the form of less movement than normal, weakened movement, incoordination, pain, and interference with sitting. The examiner noted the aforementioned contributing factors did not cause additional limitation of motion. The Veteran did not report flare-ups and repeated use over time also did not reveal additional functional loss. The Veteran had localized tenderness or pain on palpation of joints/soft tissue. The Veteran had guarding and muscle spasms, which resulted in an abnormal gait. Spinal contour was abnormal due to muscle spasm and guarding. Contributing factors of disability included weakened movement; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; and interference with sitting. No evidence of ankylosis was found. IVDS was noted with incapacitating episodes less than one week over the past twelve months. The Veteran used a brace on a constant basis to ambulate. The Veteran was examined by VA in November 2016. Initial range of motion testing showed forward flexion to 50 degrees, extension to 20 degrees, lateral flexion to 25 degrees, and lateral rotation to 25 degrees. Pain was noted on the examination and the examiner stated this pain caused a functional loss. Additional loss of range of motion was noted on repetitive testing reflecting forward flexion to 40 degrees, extension to 10 degrees, lateral flexion to 20 degrees and lateral rotation to 20 degrees. Similarly, additional loss of range of motion was noted after repeated use over time and the results were the same as the repetitive testing results above. The Veteran reported flare-ups, and additional loss of range of motion testing reflected the same findings as repetitive testing and repeated use over time. No evidence of ankylosis was found. Following the Board’s remand, in an October 2020 VA opinion, a clinician concluded that there was demonstrated improvement in the Veteran’s ability to forward flex on range of motion testing between 2013 and 2017 which entailed an improved ability to function in life and work. The clinician further noted that a review of the Veteran’s medical records reflects that the March 2010 initial range of motion flexion was to 30 degrees, the September 2013 forward flexion was to 70 degrees, the October 2014 forward flexion was to 55 degrees, and the November 2016 forward flexion was to 50 degrees. He explained that the range of motion was improved from flexion to 30 degrees in 2010 to flexion to 50 degrees in 2016. He stated that it is his opinion that the severity of the Veteran’s symptoms depends on the day that the Veteran comes in for the evaluation. He reported that the Veteran may come in for the evaluation on a bad day, average day, or a better day. He stated that these range of motion testing results are not reproducible. However, he stated that if he comes in on a day during flare-ups, his range of motion would be different. He stated that the Veteran indicated that he has continued to experience difficulty while sitting in work due to back pain. The clinician reported that the record did not report further information on how the Veteran had the reduction of his fulltime employment. In light of the above evidence, the Board finds that the reduction in the disability rating for the Veteran’s lumbar spine disability was not proper. The October 2020 VA medical opinion demonstrates that the clinician appears to have essentially analyzed the issue of reduction of the 40 percent rating in the same manner as a clinician would analyze an increased rating claim. Specifically, the clinician did not provide an adequate rationale as to whether there was an “actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” He noted the Veteran’s statements that his work life was impacted by his lumbar spine disability; however, since the clinician did not find any more information on his employment, he concluded that there was actual improvement. Moreover, he noted that the Veteran’s lumbar spine disability symptoms continue to fluctuate since he has been in receipt of service connection. As noted in the medical record, his range of motion testing has not shown consistent improvement. While his range of motion in forward flexion has improved from the 30 degrees of forward flexion noted in 2010, he has continued to experience flare-ups and functional impairment impacting the ordinary conditions of life and work. Overall, the evidence does not reflect that there was significant improvement in the Veteran’s ability to function under the ordinary conditions of life and work in light of his lumbar spine at the time of the October 2014 reduction. Rather, the competent and credible lay statements from the Veteran indicate that the functional impacts of the Veteran’s lumbar spine disability did not show sustained improvement. The circumstances under which a disability rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio and will be set aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For the foregoing reasons, the reduction in the disability rating for the Veteran’s lumbar spine disability was not proper. This renders the reduction from 40 percent to 20 percent void ab initio. Kitchens, 7 Vet. App. at 320; Dofflemeyer, 2 Vet. App. at 277. Accordingly, under these circumstances, the previously assigned 40 percent rating for the Veteran’s degenerative arthritis, anterolisthesis of the L4, spondylosis of L3-L4, and IVDS must be restored, effective January 1, 2015. TIFFANY N. HANSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.