Citation Nr: 21041562 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-53 730A DATE: July 9, 2021 ORDER Restoration of the 20 percent rating for herniated nucleus pulposus (HNP) of the lumbosacral spine effective October 14, 2019, is granted. REMANDED Entitlement to a rating in excess of 20 percent for herniated nucleus pulposus (HNP) of the lumbosacral spine is remanded. FINDINGS OF FACT 1. An August 2020 rating decision implemented the disability rating reduction from 20 percent to 10 percent for HNP of the lumbosacral spine, effective October 14, 2019. At that time, the 20 percent rating had been in effect for more than five years. 2. The AOJ rating decision which reduced a disability rating for HNP of the lumbosacral spine from 20 percent to 10 percent effective October 14, 2019, did not reflect consideration of the provisions of 38 C.F.R. § 3.344 and is void ab initio. CONCLUSION OF LAW The reduction of the rating for service connected HNP of the lumbosacral spine from 20 percent to 10 percent was improper and restoration of the 20 percent disability rating effective October 14, 2019 is warranted. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 3.102, 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1980 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A claim stemming from a rating reduction action must be phrased as whether the reduction was proper, not whether the appellant is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). In this case, the AOJ issued an August 2020 rating decision that reduced the Veteran's rating to 10 percent during the period on appeal. Thus, the Board has rephrased the issues on the title page to reflect the separate increased rating and rating reduction issues. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Restoration of the 20 percent rating for herniated nucleus pulposus (HNP) of the lumbosacral spine effective October 14, 2019 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, the Board observes that the rating reduction did not result in any reduction of VA compensation being paid to the Veteran. Thus, the procedural protections of 38 C.F.R. § 3.105 (e) do not apply. Therefore, the Veteran was not provided sixty days' notice before the disability ratings decision was made. Id. In cases where a rating has been in effect for less than 5 years, the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). In this case, the Veteran's 20 percent disability rating was awarded effective November 3, 1992. The rating was reduced effective October 14, 2019. Accordingly, 38 C.F.R. § 3.344 (c) does not apply. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 420 (1993); Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, "the Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the AOJ's reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Upon consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Veteran's service connected HNP of the lumbosacral spine from 20 percent to 10 percent was improper. The initial 20 percent evaluation was assigned based on the findings of a January 1993 VA examination, prior to the time period now on appeal. In March 2012, the Veteran submitted a claim for an increased rating of her HNP of the lumbosacral spine. The Veteran's HNP of the lumbosacral spine was reevaluated in August 2013 and October 2019. After the October 2019 VA examination, in an August 2020 rating decision, the AOJ reduced the rating to 10 percent, effective October 14, 2019. However, after a thorough review of the evidence, the Board finds that the AOJ failed to properly make findings in this case as to both prongs of the Faust test for rating reduction cases. The adjudicatory documents do not demonstrate that the AOJ made a finding with respect to whether the improvement noted reflected "an improvement in the Appellant's ability to function under the ordinary conditions of life and work" to support the rating reduction. Without such explicit findings, the Board cannot properly analyze the ratings-reduction issue currently on appeal. Further, the Veteran's treatment records note increasing levels of back pain with reports of her back giving out, which confirm that the reduction was improper, as they show there was no sustained improvement regarding the Veteran's HNP of the lumbosacral spine. Accordingly, the action to reduce the rating is void and the 20 percent evaluation for HNP of the lumbosacral spine is restored effective October 14, 2019, as though the reduction had not occurred. See Faust, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for herniated nucleus pulposus (HNP) of the lumbosacral spine is remanded. The rating reduction addressed above stems from the Veteran's application for an increased rating for her HNP of the lumbosacral spine. The Board notes that a claim for an increased rating is separate from a claim concerning whether a reduction in rating is proper. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992). While the Board addressed the issue of the propriety of the reduction of the Veteran's rating for HNP of the lumbosacral spine, the issue regarding an increased rating in excess of 20 percent for her HNP of the lumbosacral spine is being remanded. The Veteran was most recently afforded a VA examination in October 2019 to address the severity of her HNP of the lumbosacral spine, and the Board finds this examination is inadequate in light of the U.S. Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court found that 38 C.F.R. § 4.59 requires specific testing, described in the remand instructions below, to be conducted whenever possible during orthopedic examinations. The Board finds the results of the VA examination to be inadequate per Correia. A remand is necessary to afford the Veteran an adequate examination. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran's most recent outstanding VA medical treatment records with her file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service connected HNP of the lumbosacral spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: active motion; passive motion; weight-bearing; and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. Also, in order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. C. HOWELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.