Citation Nr: 21027778 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-63 250 DATE: May 6, 2021 ORDER The reduction of the evaluation for degenerative changes of the cervical spine from 20 percent to 10 percent effective January 1, 2016, was improper; and the 20 percent evaluation is restored. REMANDED Entitlement to an evaluation in excess of 20 percent prior to March 1, 2018, and in excess of 30 percent from March 1, 2018, for degenerative changes of the cervical spine is remanded. Entitlement to an initial compensable evaluation from September 23, 2014, and an evaluation in excess of 10 percent from March 1, 2018, for 11th cranial nerve dysfunction status post cerebral concussion is remanded. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a July 2015 rating decision, the RO proposed to reduce the 20 percent rating for degenerative changes of the cervical spine to 10 percent. The rating reduction was eventually implemented in an October 2015 rating decision, effective January 1, 2016. 2. Sustained and material improvement in the service-connected cervical spine disability reasonably certain to be maintained under the ordinary conditions of life has not been demonstrated by a preponderance of the evidence. CONCLUSION OF LAW The reduction of the evaluation for degenerative changes of the cervical spine from 20 percent to 10 percent effective January 1, 2016, is not proper. 38 U.S.C. § 1155, 5103A, 5107(b) (2012); 38 C.F.R. § 3.105, 3.344, 4.71a, Diagnostic Code 5242 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from May 1966 to April 1970. These matters come before the Board of Veterans' Appeals (Board) from rating decisions rendered in July 2015, October 2015, and March 2018. In the March 2018 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran's service-connected 11th cranial nerve dysfunction status post cerebral concussion residuals to 10 percent and his service-connected cervical spine disability to 30 percent, each effective March 1, 2018. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claims. AB v. Brown, 6 Vet. App. 35 (1993). In March 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The reduction of the evaluation for degenerative changes of the cervical spine from 20 percent to 10 percent effective January 1, 2016, was improper; and the 20 percent evaluation is restored. In a July 2012 VA examination report, the examiner diagnosed degeneration of cervical intervertebral disc. Cervical spine range of motion was normal on all planes with some objective evidence of painful motion. Objective evidence of painful motion began at 40 degrees on extension and 35 degrees on left lateral flexion. There was additional loss of range of motion after three repetitions with the combined range of motion of the cervical spine of 330 degrees. Functional loss after repetitive use included contributing factors of weakened movement, excess fatigability, and pain on movement. The Veteran had full strength, normal reflexes, and normal sensation. In September 2014, the Veteran sought an increased evaluation for his service-connected cervical spine disability. In a June 2015 VA examination report, the examiner listed diagnoses of cervical strain and degenerative arthritis of the spine. Cervical spine range of motion was normal on all planes with pain noted on examination that did not result in/cause functional loss. There was additional loss of function or range of motion after three repetitions with the combined range of motion of the cervical spine of 310 degrees. The Veteran exhibited full strength, normal reflexes, normal sensation, no ankylosis or radiculopathy, and slight loss in normal cervical lordosis. In a July 2015 rating decision, the AOJ proposed to reduce the Veteran's 20 percent evaluation for his service-connected degenerative changes of the cervical spine to a 10 percent rating. It was noted that due to the June 2015 VA examination report findings, the AOJ was proposing to reduce his rating, as evidence cited showed that he had full but painful range of motion in the cervical spine with no indication of tenderness, muscle spasm, or radicular symptoms. In a July 2015 letter, the AOJ informed the Veteran of his due process rights, including 60 days to present additional evidence to show that compensation payments should be continued at the present level and 30 days to request a predetermination hearing. In an October 2015 statement, the Veteran asserted that the June 2015 VA examination was not comprehensive. He contended that he had increased pain, limited range of motion, tenderness, stiffness, muscle spasms, numbness, and tingling in both arms. The reduction was later implemented in an October 2015 rating decision, reducing the Veteran's rating from 20 percent to 10 percent, effective January 1, 2016. It was noted that VA examinations dated in July 2012 and June 2015 showed sustained improvement of the cervical spine. A 10 percent evaluation was assigned from January 1, 2016, the first day of the month following a 60-day period from the date of notice of the final rating decision. In April 2016, private treatment records dated in April 2015 detailed findings of cervicalgia and spinal stenosis in the cervical region and complaints of neck pain, stiffness, and bilateral upper extremity paresthesias. An April 2016 private MRI report revealed degenerative disc disease with disc desiccation from C3-4 through C7-T1 without significant disc space narrowing. Additional VA treatment notes dated in 2016 and 2017 detailed complaints of chronic neck pain and tingling and numbness in the fingers. In a March 2018 VA examination report, the Veteran exhibited limitation of cervical motion in all planes. On repetitive motion testing, forward flexion of the cervical spine was limited to 15 degrees. After repetitive use over time, forward flexion of the cervical spine was limited to 10 degrees with functional loss due to pain and lack of endurance. During flare-ups, forward flexion of the cervical spine was limited to 5 degrees with functional loss due to pain and lack of endurance. The Veteran exhibited normal muscle strength and no ankylosis. He had mild intermittent radicular pain, mild paresthesias, and mild numbness in the right and left upper extremities. In a March 2018 rating decision, the AOJ assigned a 30 percent rating for the service-connected cervical spine disability, effective March 1, 2018. When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. Regarding the initial question, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons, therefore. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). 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 a veteran of the final rating action expires. Id. In this case, the 20 percent disability rating for the Veteran's service-connected cervical spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5242 was in effect from March 24, 1998, to January 1, 2016, a period of more than five years. Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) apply, which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. Where a rating has been in effect for five years or more, as in this case, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for disease subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). The question of whether a disability has improved involves consideration of the applicable rating criteria. Disability evaluations are determined by the application of a schedule of ratings that is based as far as practical on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the veteran's responsibility to show that the disability has worsened. 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 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. Cf. Dofflemyer, 2 Vet. App. at 281-282. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 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, Diagnostic Code 5242. 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. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees; extension is zero to 45 degrees; left and right lateral flexion are zero to 45 degrees; and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. Id. at Note (2), Plate V. The Court has stated that both decisions by the AOJ and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Here, the AOJ's October 2015 rating decision essentially analyzed the issue of reduction of the 20 percent evaluation just as it would a claim for an increased rating. The Board is cognizant that improvement in the Veteran's cervical spine disability was shown. However, the AOJ failed to consider and discuss in any meaningful way whether evidence of record at the time of the reduction makes it reasonably certain that the improvement would be maintained under the ordinary conditions of life. In summary, the AOJ's analysis was not in compliance with the requirements of 38 C.F.R. § 3.344. Instead, the AOJ made the conclusory statement that based on a review of VA examination reports dated in July 2012 and June 2015 there was evidence of sustained improvement of the cervical spine disability and an evaluation of 10 percent was to be assigned from January 1, 2016. Accordingly, the Board finds that the disability rating reduction effectuated by the October 2015 rating decision was not in accordance with the requirements of 38 C.F.R. § 3.344(a) and (b) and is void ab initio. The 20 percent evaluation for degenerative changes of the cervical spine must be restored. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent prior to March 1, 2018, and in excess of 30 percent from March 1, 2018, for degenerative changes of the cervical spine is remanded. 2. Entitlement to an initial compensable evaluation from September 23, 2014, and an evaluation in excess of 10 percent from March 1, 2018, for 11th cranial nerve dysfunction status post cerebral concussion is remanded. 3. Entitlement to a compensable evaluation for bilateral hearing loss is remanded. During his March 2021 Board hearing, the Veteran asserted that his cervical spine, cranial nerve, and bilateral hearing loss disabilities have increased in severity since he was last examined by VA in March 2018. The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of his cervical spine, cranial nerve, and bilateral hearing loss disabilities. Evidence of record further reflects that the Veteran received VA medical treatment for his service-connected cervical spine, cranial nerve, and bilateral hearing loss disabilities from Fresno VAMC. As evidence of record only includes treatment records dated up to April 2018 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, evidence of record reflects that the Veteran received private medical treatment in 2018 for his service-connected cervical spine disability from D. S., M. D. Any additional identified private treatment records should be obtained and associated with the record. 38 C.F.R. § 3.159(c) (2020). The matters are REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's service-connected cervical spine, cranial nerve, and bilateral hearing loss disabilities from Fresno VAMC from April 2018 to present. 2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include private medical treatment for his service-connected cervical spine disability from D. S., M. D. With any needed assistance from the Veteran, obtain any identified private treatment records reflecting treatment for his service-connected disabilities. 3. Schedule the Veteran for an examination(s) by an appropriate clinician(s) to determine the current severity of his service-connected cervical spine, cranial nerve, and bilateral hearing loss disabilities. Each examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's cervical spine, cranial nerve, and bilateral hearing loss disabilities under the relevant rating criteria. (Continued on the next page) 4. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the March 2018 SOC. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.