Citation Nr: 21042404 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-29 786 DATE: July 13, 2021 ORDER The November 2015 rating decision that reduced the disability rating for the Veteran's lumbar strain from 20 percent to 10 percent, effective February 1, 2016, was improper and is void ab initio; the Veteran's 20 percent rating for lumbar strain is restored, effective the date of the reduction. Entitlement to a rating in excess of 20 percent for lumbar strain is denied. FINDINGS OF FACT 1. The November 2015 rating decision, which reduced the rating for the Veteran's service-connected lumbar strain from 20 percent to 10 percent, failed to comply with pertinent law and regulations by not assessing whether the VA examination report on which the reduction decision was based was full and complete, and by not assessing whether it was reasonably certain that any improvement of the Veteran's back condition would be maintained under ordinary conditions of life and work. 2. Throughout the rating period on appeal, the Veteran's service-connected lumbar strain is manifested by forward flexion to greater than 30 degrees even when considering functional loss due to pain, no ankylosis, and no incapacitating episodes. CONCLUSIONS OF LAW 1. The November 2015 rating decision that reduced the Veteran's lumbar strain rating to 10 percent, effective February 1, 2016, was improper and is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for a rating in excess of 20 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 2002 to March 2004. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) in March 2021, asking that the February 2020 Board decision be vacated only as it pertained to the reduced ratings for lumbar strain. In March 2021, the Court granted the JMPR and remanded the issue on appeal for readjudication in accordance with instructions set out in the JMPR. The Board has considered the Veteran's claims and decided entitlement based on the evidence of record. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Restoration of the reduction for lumbar strain By way of background, service connection for lumbar strain was granted in a March 2004 rating decision and a 10 percent rating was assigned, effective April 1, 2004. In a July 2009 rating decision, the rating was increased to 20 percent, effective March 10, 2009. In a November 2015 rating decision, the rating was decreased to 10 percent, effective February 1, 2016. Based on the foregoing history, prior to the November 2015 reduction, the Veteran was in receipt of a 20 percent rating for his lumbar strain for a period of more than six years. In this regard, the Board observes that VA regulations provide that, with respect to ratings that have continued at the same level for long periods (5 years or more), reductions are proper only after review of the entire record of examinations and medical-industrial history so as to ascertain whether the recent examination (upon which the reduction is based) is full and complete. 38 C.F.R. § 3.344 (a), (c). Moreover, even where material improvement in the disability in question is clearly reflected, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. Indeed, in Brown v. Brown, the U.S. Court of Appeals for Veterans Claims held that, "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that 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, 421, (1993). With respect to the requirement that it be ensured that the medical examination upon which a reduction is based is full and complete, the Board observes that the decision to reduce the Veteran's rating was based on the findings contained in May 2014 and August 2015 VA examinations. Upon review of these examinations, the Board notes the VA examination reports did not comply with 38 C.F.R. § 4.59, as interpreted by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the proper interpretation of the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged join," was addressed. In the February 2020 decision, the Board determined that despite the lack of Correia compliant testing, the examination reports were "nonetheless adequate" and affirmed the ratings reduction. The Court determined that the Board conclusion amounted to an unsubstantiated medical determination. The Board may not make its own unsubstantiated medical determinations. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). This served as the basis of the JMPR. Thus, it appears the RO's November 2015 reduction decision was made on the basis of examination reports which did not address whether the joint involved was tested for pain on both active and passive motion and in weight-bearing and non-weight-bearing. Under these circumstances, the Board finds the RO did not ascertain whether the examination report on which its decision was based was full and complete before issuing the November 2015 decision. The Board also observes the November 2015 decision did not include any finding as to whether it was reasonably certain that any improvement in the Veteran's lumbar strain would be maintained under ordinary conditions of life and work. For the foregoing reasons, the Board finds the November 2015 rating reduction decision failed to comply with the provisions of 38 C.F.R. § 3.344 and is, therefore, void ab initio. See Schafrath v. Derwinski, 1 Vet. App. 589, 594-96 (1991) (where a rating decision was made without observance of law in a rating reduction case, the erroneous reduction must be vacated, and the prior rating restored). 2. Entitlement to a rating in excess of 20 percent for lumbar strain Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating any musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Disabilities of the spine, including lumbar strain (Diagnostic Code 5237), are rated under the General Rating Formula for Diseases and Injuries of the Spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R.§ 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent disability 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, Code 5237. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Under the Formula for Rating intravertebral disc syndrome (IVDS) based on incapacitating episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. In order for the Veteran to be entitled to a higher than 20 percent rating for his service-connected lumbar strain under the General Formula for Rating Diseases and Injuries of the Spine, there must be forward flexion of the thoracolumbar spine of 30 degrees or less or the functional equivalent thereof; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Code 5237; see also Deluca, supra. The Veteran received a VA examination in May 2014. Range of motion findings at that time revealed forward flexion of the thoracolumbar spine to 85 degrees. Objective pain was not noted on range of motion. Repetitive use testing was performed with no additional limitation of range of motion. However, the examiner noted less movement than normal. There was no ankylosis or neurologic abnormalities. While IVDS was noted, there was no incapacitating episodes over the past 12 months. The examiner noted 2010 MRI results which showed minimal disk bulging but more of a disc desiccation. In August 2015, the Veteran underwent another VA examination. The examiner confirmed the Veteran's diagnosis of lumbar strain. The Veteran did not report any flare-ups or functional impairment. Initial range of motion measurements were normal. There was no pain noted on examination, no evidence of pain with weight-bearing, and no evidence of localized tenderness or pain on palpitation of the joints and soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing without additional functional loss. Muscle strength, sensory, and reflex testing were all normal. The Veteran endorsed muscle spasms and guarding; however, it was not severe enough to result in abnormal gait or abnormal spinal contour. No radiculopathy, ankylosis, or IVDS was noted on the examination. Pursuant to the February 2020 Board remand, the Veteran received a VA examination in October 2020. The Veteran reported flare-ups resulting in increased pain after prolonged sitting. His initial range of motion was noted to be abnormal with forward flexion to 70 degrees, extension to 20 degrees, and right lateral flexion to 20 degrees. Pain was noted on the examination but did not result in/cause functional loss. There was evidence of pain on weight bearing, but no evidence of pain on non-weight-bearing. There was no additional limitation of motion with repetitive use, repeated use over time, or flare-ups. No guarding or muscle spasm was noted. No radiculopathy, neurologic abnormalities, ankylosis, or IVDS was noted. While there is no disputing that the Veteran experiences lumbar pain to varying degrees as is evident in the examination reports outlined above, as well as in his medical treatment records, he has not been shown to have functional loss equivalent to the criteria for a 40 percent rating requiring limitation on forward flexion to 30 degrees or less. This is based on his reports of functional loss, his demonstrated range of motion findings, and the assessments of functional loss by the VA examiners. DeLuca v. Brown, 8 Vet. App. 202 (1995). As to ankylosis, the May 2014, August 2015, and October 2020 examiners noted that the Veteran did not have ankylosis. Separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted because neurologic findings and symptoms warranting separate ratings have not been demonstrated. Neurological findings at the May 2014, August 2015 and October 2020 VA examinations were unremarkable. In the absence of any quantifiable neurologic impairment, there is no basis to rate such a condition. The Board has considered other appropriate Codes, particularly Code 5243 for IVDS. However, there is no evidence, either lay or medical, of incapacitating episodes as contemplated by the regulation. Rather, all three VA examiners found that the Veteran did not have incapacitating episodes due to IVDS over the past 12 months. Accordingly, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. The Board further concludes that there is no basis for increased ratings of the Veteran's lumbar strain, as his symptoms were primarily the same throughout the appeal period. After careful review of the record, the Board finds that the most probative evidence of record does not reach the level of equipoise as to whether higher ratings may be assigned at any time during the period on appeal. Thus, for the foregoing reasons, the Board finds that a rating greater than 20 percent for the Veteran's lumbar strain is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.