Citation Nr: 21032303 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-43 693 DATE: May 26, 2021 ORDER Entitlement to an increased disability evaluation in excess of 40 percent prior to June 1, 2014 and in excess of 20 percent thereafter for service-connected lumbar-spine disorder is denied. The appeal challenging the propriety of the reduction of the disability evaluation from 40 percent to 20 percent, effective June 1, 2014, for service-connected lumbar-spine disorder is denied. FINDINGS OF FACT 1. The objective medical evidence shows at no time during the appeal period prior to June 1, 2014 did lumbar-spine disorder more closely approximate unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine or intervertebral disc syndrome (IVDS); nor in the period thereafter did it more closely approximate forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or IVDS. 2. The objective medical evidence shows findings on examination during the appeal period first indicated improvement of service-connected lumbar-spine disorder, then further findings confirmed sustained improvement, with the reasonable certainty the improvement will be maintained under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 40 percent prior to June 1, 2014 and an increased evaluation in excess of 20 percent thereafter for lumbar-spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2020). 2. Restoration of the 40 percent disability evaluation from June 1, 2014 for service-connected lumbar-spine disorder is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1974 to August 1978. Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The 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 ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury, so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2020). When evaluating musculoskeletal disabilities, VA, in addition to applying the schedular criteria, may assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Additionally, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, actually painful, unstable or malaligned joints, due to a healed injury, are recognized as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki at 5 (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Reduction of Ratings In its November 2013 rating decision, the Agency of Original Jurisdiction (AOJ) proposed to reduce the Veteran's 40 percent rating for lumbar-spine disorder to a 20 percent rating. A March 2014 rating decision accomplished the reduction. A set of procedural safeguards governing rating reductions is outlined in 38 C.F.R. § 3.105, which are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the instant case, the AOJ procedurally complied with 38 C.F.R. § 3.105, regarding the manner in which the Veteran was given notice of the proposed rating reduction and the implementation of that reduction. Notice of the proposed rating reduction, including the evidentiary basis for this proposal, was provided to the Veteran in a November 15, 2013 notification letter. This notice also informed the Veteran that he could submit additional evidence to show that the compensation payments should not be reduced and advised him of his right to request a pre-decisional personal hearing. As the Board finds the AOJ has fulfilled its procedural requirements set forth under 38 C.F.R. § 3.105 for rating reductions, the Board will now consider the propriety of the rating reduction itself. The provisions of 38 C.F.R. § 3.344 (a) and (b) provide that, when a veteran's schedular rating has been both continuous and stable for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating in effect for more than 5 years will not be reduced on the findings of any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. At the time the reduction became effective, June 1, 2014, the 40 percent for rating lumbar-spine disorder had not been continuously in effect for a period of over 5 years and, as such, the provisions of 38 C.F.R. § 3.344 (a) and (b) are not applicable. The rating agency must also take into consideration whether the evidence makes it reasonably certain the improvement will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, supra. 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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the AOJ's reduction was warranted. See Brown v. Brown, supra; Kitchens v. Brown, supra (1995). 1. Entitlement to an increased disability evaluation in excess of 40 percent prior to June 1, 2014 and in excess of 20 percent thereafter for service-connected lumbar-spine disorder. 2. Propriety of the reduction of the disability evaluation from 40 percent to 20 percent, effective June 1, 2014, for service-connected lumbar-spine disorder. Lumbar-spine disorder is evaluated under Diagnostic Code 5243 (for IVDS), which in turn defers either to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, a 20 percent rating is assigned 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. The Board will briefly note here that ankylosis is "immobility and consolidation of a joint due to disease, injury, [or] surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS' ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH at 68 (4th ed.1987)). Note (2) of the General Rating Formula provides that, for VA compensation purposes, 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 motion 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. Id. Although Note 4 of the General Rating Formula offers the choice of alternatively rating lumbar spine disorder under the IVDS Formula for whichever criteria of the two rating formulae provides a higher evaluation, the latter rating formula must be based on incapacitating episodes in the last 12 months, defined as 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. As stated, IVDS is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. It is the Board's duty to acknowledge and consider all regulations which are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The IVDS Formula defines an incapacitating episode as a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician (Note (1)). A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. The Board will briefly note here that the rating criteria for Diagnostic Code 5243 for IVDS have been revised, effective February 7, 2021. For the period prior to June 1, 2014, the revisions are not applicable, but will be applied in the period from June 1, 2014 on and after February 7, 2021. The revision simply states to assign Diagnostic Code 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root, or another diagnostic code for degenerative arthritis should be assigned. The record shows a December 1995 MRI of the lumbosacral spine, showing performance of axial and sagittal T1 and T2 weighted sequences, which "demonstrate[d] an enormous left para-central disc herniation at the L5-S1 interspace level," further showing the left S1 nerve root "is obviously compressed." Turning to the record, the Veteran informed VA on October 10, 2013 that he desired to file a claim for an increased evaluation for lumbar-spine disorder, then rated at 40 percent disabling. An October 2013 VA examination for thoracolumbar-spine conditions shows a diagnosis of lumbar-spine degenerative disc disease. The VA examiner noted the Veteran's reports of pain being dull or sharp at different times, depending upon his activity level. Range of motion measurements show forward flexion at 80 degrees (90 degrees, normal) and extension at 25 degrees (30 degrees, normal), with painful motion beginning no sooner. The findings for repetitive use testing were the same. The Veteran reported that flare-ups do not impact spine function. Adding to the above the measurements for the 4 other range of motion maneuvers (right-lateral flexion, left-lateral flexion, right-lateral rotation, and left-lateral rotation), the combined range of motion was 215 degrees. The October 2013 VA examiner found functional impairment, due to less movement than normal, and pain on movement. He further found guarding or muscle spasm which affected gait or spinal contour. He made no finding of ankylosis. The October 2013 VA examiner further found the Veteran did not have IVDS. In August 2016, the Veteran presented to VA with reports of low-back pain at 8/10 for the past several days, with muscle spasms. The treatment provider the next day found on examination the Veteran exhibited a "lumbering gait with cane," "very limited flexion at the LS [lumbosacral] spine" and loss of lumbar lordosis. However, the treatment provider produced no goniometric measurements. As directed in the Board's November 2018 Remand, the Veteran was afforded another VA examination for thoracolumbar-spine conditions in October 2020, in which the VA examiner stated a March 1999 diagnosis of degenerative arthritis of the spine. She noted the Veteran's reports of functional loss due to constant pain and stiffness with any activity, to include, bending, turning and movements generally. Range of motion measurements show forward flexion at 68 degrees and extension at 22 degrees, with painful motion beginning no sooner. The combined range of motion of all 6 maneuvers was 182 degrees. The findings for repeated use over time show flexion at 65 degrees, extension at 20 degrees and, with the remaining 4 maneuvers also showing diminished movement, the combined degrees of all 6 maneuvers was 165 degrees. The October 2020 VA examiner further found pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability with repeated use over a period of time. The Veteran reported that flare-ups impact spine function and, although not exhibited on that day's examination, the October 2020 VA examiner estimated range of motion for forward flexion, extension and all maneuvers combined was the same as for repeated use over time. She further found pain, fatigue, weakness, lack of endurance, and incoordination significantly limit functional ability during a flare-up. Although finding muscle spasm, she also found it did not result in an abnormal gait or abnormal spinal contour and she found there was no guarding. She found there is no ankylosis of the spine. The October 2013 VA examiner found the Veteran does not have IVDS. She found no objective evidence of pain on non-weight bearing and passive range of motion measurements were the same as during active range of motion. Any objective pain in passive maneuvers was the same as in the active ones. Both VA examinations in the appeal period include findings of pain or painful motion. Those findings, as well as other factors of weakness, excessive fatigability or incoordination, have been considered and are ultimately reflected in the assigned disability ratings, consistent with DeLuca v. Brown, 8 Vet. App. 204-07; Burton v Shinseki, 25 Vet. App. at 5, above. So, too, is pain affecting normal working movements of the body such as "excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. at 37, above. Based on the findings of the VA examinations, the assigned ratings provide for the effects of limitation of motion, whether due to pain on movement or restricted movement due to the orthopedic injury itself. The factors were considered in both stages of the appeal period and affirmatively applied. The Board has carefully considered the Veteran's statements accompanying his March 2014 Notice of Disagreement, his August 2016 Veterans Appeals Form 9 and a second Form 9, dated November 2020, as well as his reports to treatment providers, as they appear throughout the record. The Board is well aware lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Veteran's lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran's statements describing his current symptoms of lumbar-spine disorder specifically assert that his range of motion is very limited, as shown in x-rays and contend his lumbar-spine disorder should not have been reduced, but rather "[i]t should be 60 [percent]." Once again, although the Veteran is wholly credible in his account of what he felt from symptoms, his statements do not speak directly to the rating criteria under the General Rating Formula. The Board therefore assigns more probative value to the October 2013 and October 2020 VA examiners, as the examinations were conducted by medical professionals after in-person examination and testing of the Veteran's spine, the examiners thoroughly reviewed of the Veteran's medical history and their orthopedic findings, for the reasons stated above, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). In the period prior to June 1, 2014, the October 2013 VA examination contains no findings of unfavorable ankylosis of the thoracolumbar spine or of the entire spine for a 50 percent or 100 percent rating under the General Rating Formula. Moreover, the October 2013 VA examiner found the Veteran does not have IVDS. In the period from June 1, 2014, the October 2020 VA examiner also did not make the above findings, nor did she find forward flexion of the spine at 30 degrees or less, as forward flexion, even with the examiner's estimations for repeated use over time and flare-ups, was not recorded below 65 degrees. The forward flexion and combined range of motion measurements in fact more reflect a 10 percent rating under the General Rating Formula, but a higher rating of 20 percent in this period was assigned to reflect further limited movement taken into account for weakness, excessive fatigability or incoordination, consistent with DeLuca v. Brown, Burton v. Shinseki and Mitchell v. Shinseki, discussed above. The October 2020 VA examiner further found the Veteran does not have IVDS. Further, these findings support those of the October 2013 examination that resulted in the rating reduction. Improvement has been shown and sustained from any findings warranting a 40 percent rating. Without the above findings for both stages of the appeal period, no higher rating is available to the Veteran under the General Rating Formula and as neither VA examiner found IVDS, the Board cannot apply the IVDS Formula. Turning to the issue of whether the reduction of the rating from 40 percent to 20 percent was proper, in the appeal period over the course of approximately 7 years, the October 2013 and October 2020 VA examiners made findings indicating the criteria under the General Rating Formula were satisfied for a disability evaluation no higher than a 20 percent and sustained at that level throughout that period. The Board finds the foregoing findings on examination over the length of that period, although not consistent with higher ratings, nonetheless provide the best and most reasonable indication that such improvement has been and will be maintained under the ordinary conditions of life. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against a disability evaluation in excess of 40 percent prior to June 1, 2014 and in excess of 20 percent thereafter. The Board further finds, as the evidence of record shows the AOJ complied with the appropriate procedural protections and the objective medical evidence supports the reduction, the preponderance of the evidence shows the reduction from a 40 percent evaluation to 20 percent was proper and restoration of the rating is not warranted. 38 C.F.R. § 3.105 (e). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, Associate 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.