Citation Nr: 21016172 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 17-56 180 DATE: March 22, 2021 ORDER The reduction of the rating for residuals, low back injury with degenerative disc disease and arthritis, L4, L5-S1, from 40 percent to 20 percent was improper; a restoration of a 40 percent rating is granted, effective April 1, 2016. REMANDED Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At the time of the January 2016 reduction action, a 40 percent rating for service-connected lower back disability had been in effect for over five years. 2. Improvement maintained under the ordinary conditions of life in lower back disability is not shown by a preponderance of the evidence. CONCLUSION OF LAW The reduction of the rating for the service-connected lower back disability from 40 percent to 20 percent was improper and the 40 percent rating is restored, effective April 1, 2016. 38 C.F.R. § 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1974 to January 1981. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2015 and January 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Rating Reduction A veteran’s disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Ratings in effect for five years or more are governed by 38 C.F.R. § 3.344(a), (b). In this case, the 40 percent rating assigned for a lower back disability was in effect from April 8, 2004, to April 1, 2016, which is greater than five years, but less than 20 years. Accordingly, VA must review the entire record of examinations and medical history to determine whether the examination used to determine the reduction was at least as full and complete as the examination upon which the prior rating was assigned. 38 C.F.R. § 3.344(a). The determination in a reduction rating case must include the proper application as to the standard of proof. In rating reduction cases, VA must establish that the reduction was warranted by a preponderance of evidence. Brown v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction in rating must be based upon review of the entire history of the disability. Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280-81 (1992). VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). Finally, it must be determined whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. There must be an actual improvement in the disability and not just a failure to meet the requirements of a rating under the currently assigned diagnostic code. In sum, in any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown, 5 Vet. App. at 421; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). VA regulations provide for specific notice requirements in instances where a reduction in disability rating is considered. 38 C.F.R. § 3.105(e). In this case, these notice requirements were satisfied. Specifically, the RO notified the Veteran about the proposed reduction in August 2015 and allowed him a period of 60 days to present additional evidence before issuing its final rating decision in January 2016. 1. Whether the reduction in rating from 40 percent to 20 percent for residuals, low back injury with degenerative disc disease and arthritis, L4, L5-S1 was proper. The Veteran contends that the reduction in rating for a lower back disability was improper. In a December 2014 VA examination, the Veteran reported that he had constant aching lower back pain. The Veteran also reported flareups occurring 2-3 times per week. The examiner, however, did not describe the functional loss during flareups due to pain in terms of range of motion. 12/11/2014, C&P Exam. An April 2015 VA examination also noted that the Veteran had flareups occurring 2-3 times per week. Again, the examiner could not opine as to the functional loss during flareups without resort to speculation. Functional loss was described as an inability to stand for more than 30 minutes without resting or heavy lifting greater than 50 pounds. 04/07/2015, C&P Exam. A January 2016 VA examination indicated that the Veteran experienced constant lower back pain, as well as flareups of sharp, burning pain. The examiner could not opine as to the functional loss during flareups without resort to speculation. Regarding functional impairment, it states that his back would prevent hard or medium manual labor but not light manual or sedentary labor. 01/21/2016, C&P Exam. An August 2018 VA examination noted the Veteran’s reports of constant back pain that is aggravated by prolonged walking, bending, stopping, inclines, or ascending stairs. The Veteran described flareups as being stabbed in the lower back, and also indicated that he cannot even walk during periods of great pain. The examiner could not opine as to the functional loss during flareups without resort to speculation. 08/03/2018, C&P Exam. During a December 2020 Board hearing, the Veteran testified that he experiences approximately five episodes of exacerbated lower back pain per year, with a duration of approximately three days. During these episodes, the Veteran copes by laying on the floor or in a recliner with a heating pad until the pain dissipates, in addition to taking prescription pain medication. 12/15/2020, Hearing Transcript. After review of the record, the Board finds that the reduction in rating for a lower back disability was improper. In this regard, the Veteran has reported incapacitating exacerbations occurring 3 or more times a year, which warrants at least a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5002. The Veteran is competent to describe his lower back pain that causes him to lay down for several days approximately five times per year. As the Veteran has remained consistent in his assertions regarding his pain level throughout the period on appeal, the Board finds his statements to be credible. The Board acknowledges the VA examinations that show some improvement in his lower back; however, none of the VA examinations provided opinions as to the Veteran’s functional impairment during flareups. Also, the Veteran’s flare-ups have been relatively consistent over the examinations after the 2014 VA examination used as the basis for the reduction. In light of the competent lay evidence, the Board finds that an improvement in the Veteran’s ability to function under the ordinary conditions of life and work is not shown by a preponderance of the competent and probative evidence. See Brown, 5 Vet. App. at 421. Accordingly, restoration of the 40 percent rating for residuals, low back injury with degenerative disc disease and arthritis, L4, L5-S1, effective April 1, 2016, is warranted. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. 3. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded. The Veteran last underwent a VA examination in July 2015. He had normal (5/5) muscle strength for his right and left sides. He did not have muscle atrophy. He had absent reflexes (0) in his right knee, and normal reflexes (2+) for his left knee and bilateral ankles. The Veteran had normal sensation in the sensory exam. He had negative straight leg rating tests for both right and left legs. The Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness for both his left and right sides. The sciatic nerves were involved, and the examiner reported mild right and left side radiculopathy. 08/03/2018, C&P Exam. However, the record suggests that the Veteran’s symptoms has since worsened. During the December 2020 Board hearing, the Veteran testified that that his radiculopathy had worsened to a moderate-severe level. The Veteran also described tingling and numbness in the legs when standing or walking. He also testified that he is unable to stand for more than five minutes, and that he cannot walk further than a city block. 12/15/2020, Hearing Transcript. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran’s radiculopathy of the right and left lower extremities. 38 C.F.R. § 3.327(a). 4. Entitlement to TDIU is remanded The Board finds that the claim of entitlement to TDIU is inextricably intertwined with the rating issue for the radiculopathy disabilities on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, the TDIU issue is remanded in conjunction with the radiculopathy issues to afford the Veteran a current examination to determine his occupational and social employability. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of his radiculopathy of the right and left lower extremities. The examiner should review the virtual file, including a copy of this Remand. The examiner is asked to comment on the affect the Veteran’s service-connected disabilities on his ability to function in an occupational environment and describe any functional limitations. 3. After completing directives # 1 and # 2, take any action deemed necessary to assess the TDIU matter, to include, if needed, a VA examination(s). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.