Citation Nr: 21032010 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-02 416 DATE: May 25, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. The reduction of the disability rating for lumbar spine disability from 20 percent to 10 percent, effective April 17, 2015, was not proper; a 20 percent rating is restored. FINDINGS OF FACT 1. The Veteran's GERD is related to his service-connected duodenal ulcer. 2. At the time of the reduction, the 20 percent rating for a lumbar spine disability had been in effect for less than five years. 3. Resolving all doubt in the Veteran's favor, the severity of his lumbar spine symptoms do not reflect an overall improvement in his ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. 2. The criteria for a restoration of a 20 percent disability rating for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge by virtual hearing; a transcript of the hearing is of record. 1. Entitlement to service connection for gastroesophageal reflux disease (GERD) Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection also may be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is service connected for duodenal ulcer. In January 2015, the Veteran filed a claim for service connection for GERD as secondary to the service-connected duodenal ulcer. The Veteran underwent a VA examination in January 2019. The examiner reviewed the record and noted that the Veteran had no issues related to the claimed GERD prior to military service. The onset of the condition was during service, as documented in the service treatment records. There is evidence of current, chronic and continuous treatment and care. Around 1978-80 he was treated for reflux and had ulcer surgery in Italy at the mid-epigastric and over time condition has gotten worse with regurgitation causing burning sensation on the throat that makes his voice hoarse. He was diagnosed with laryngitis secondary to reflux. This indicates condition was aggravated beyond natural progression of service-connected duodenal ulcer with perforation status post explanatory laparotomy with over sewing of the perforation. The Board finds that the January 2019 VA examiner's opinion contains a rationale for the conclusion that the Veteran's GERD is secondary to his service-connected duodenal ulcer. There is no probative medical opinion to the contrary. There is a basis of entitlement to service connection for GERD on a secondary basis under 38 C.F.R. § 3.310. 2. The reduction of the disability rating for lumbar spine disability from 20 percent to 10 percent, effective April 17, 2015, was not proper; a 20 percent rating is restored. The appeal arises from a June 2015 rating decision which reduced the Veteran's service-connected lumbar spine disability from 20 percent disabling to 10 percent disabling, effective April 17, 2015. The Veteran submitted a notice of disagreement (NOD) disagreeing with the rating reduction. Thus, it was the reduction issue, and not an increased rating issue, that was appealed. Where the reduction in the rating 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. 38 C.F.R. § 3.105 (e). The Veteran was not notified of the proposed reduction of his disability rating in accordance with 38 C.F.R. § 3.105 (e). However, as the rating action that implemented the rating reduction did not change the Veteran's overall disability rating, a reduction of compensation payments did not occur, and the procedural safeguards of 38 C.F.R. § 3.105 (e) do not apply. See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347- 49 (Fed.Cir.2007). And inasmuch as this decision grants the appeal, i.e., restores a 20 percent rating for lumbar spine disability, any procedural omission is harmless. Reducing a rating also brings concurrent substantive requirements that must be followed. When a disability rating has been in effect less than five years, as in this case, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, however, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The regulations impose a clear requirement that rating reductions be based upon review of the entire history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain 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 rating reduction case it not only must be determined whether an improvement in disability occurred but whether it actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. §§ 4.2, 4.10. Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 227 (1992). The 20 percent rating for lumbar spine disability was reduced effective April 17, 2015. As of this date, the 20 percent rating had been in effect for approximately one year and eight months. Thus, the rating was in effect for less than five years; 38 C.F.R. § 3.344 (c) is applicable, and the added protections of § 3.344(a), (b) are not applicable. A reexamination disclosing improvement in this disability will warrant a reduction in the rating. 38 C.F.R. § 3.344 (c). Nonetheless, for the following reasons, the Board finds that the reduction of the rating for lumbar spine disability was improper. Disabilities of the spine (other than IVDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Any associated objective neurologic abnormalities are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (2), General Rating Formula, 38 C.F.R. § 4.71a, Plate V. Alternatively, under the IVDS Formula for intervertebral disc syndrome, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. Id. The 20 percent rating was assigned by an October 2014 rating decision. It was based on findings from a September 2014 VA examination that noted forward flexion to 60 degrees; extension to 25 degrees; left and right lateral flexion to 25 degrees each; left and right lateral rotation to 25 degrees each; and pain with range of motion. A February 2015 rating decision assigned an effective date of August 26, 2013 for the 20 percent rating. Findings on VA examination dated in April 17, 2015 were used as rationale to support a reduction of the Veteran's disability rating in the June 2015 rating decision. On that examination, the Veteran reported that his back disability had gotten worse. The April 2015 examination noted flexion to 80 degrees; extension to 20 degrees; left and right lateral flexion to 20 degrees; left and right lateral rotation to 20 degrees. After repetitive use testing, the ranges of motion were unchanged. The examiner noted functional loss in the form of less movement than normal, pain on movement, and swelling. The examiner noted muscle spasm and/or guarding that did not result in abnormal gait or spinal contour. The Veteran was noted to use a brace constantly. In his testimony before the undersigned, the Veteran explained that his back disability had not improved, and in fact had worsened. He explained that he could not sit or stand for long, and had pain when he turned the wrong way in bed. He reported that his back pain contributed to his leaving his job. The record includes a January 2019 VA examination that notes flexion to 70 degrees. The examiner noted pain that caused functional loss. The examiner noted pain with weight bearing. The examiner was unable to state how much additional range of motion loss would be present during a flare-up. The Veteran reported pain and difficulty with bending, standing, and walking for long periods. The Board finds that the evidence weighs in favor of a restoration of the 20 percent rating because it is not shown that the severity of the Veteran's back symptoms reflect actual improvement in his ability to function under the ordinary conditions of life and work. Significantly, the pertinent post-reduction evidence, in the form of the Veteran's competent and credible lay testimony, shows his disability has not improved overall. The April 2015 examination report itself noted that his ranges of motion other than flexion (i.e., extension, left and right lateral flexion, left and right lateral rotation) were all reduced from the September 2014 examination. His reported symptomatology is, at a minimum, congruent with a 20 percent evaluation that contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Accordingly, the 20 percent rating for the Veteran's lumbar spine disability is restored effective April 17, 2015. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.