Citation Nr: 22009666 Decision Date: 02/17/22 Archive Date: 02/17/22 DOCKET NO. 17-28 971 DATE: February 17, 2022 ORDER Reduction from 30 percent to 10 percent for cervical spine spondylosis was improper, restoration to 30 percent is granted. FINDING OF FACT The medical evidence of the record does not demonstrate actual improvement in the Veteran's ability to function under the ordinary conditions of life as a result of his service-connected cervical spine condition. CONCLUSION OF LAW The criteria for restoration to 30 percent for cervical spine spondylosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2010 to January 2013. This appeal to the Board of Veteran's Appeals (Board) arose from a May 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Initially, the Veteran requested a hearing before the Board, which was originally scheduled for July 2019, but was postponed to September 2021. The Veteran was deemed a no show for the September 2021 hearing. The Veteran's representative requested a 90-day extension to submit a brief on the Veteran's behalf. See September 2021 Third Party Correspondence. The extension was granted. See October 2021 BVA Letter. The brief was submitted in January 2022. Another hearing was not requested. Therefore, the Board will continue with adjudication of the appeal. Whether reduction from 30 percent to 10 percent for cervical spine spondylosis was proper. There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the Agency of Original Jurisdiction (AOJ) must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). In this current matter, 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). A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). Provisions (a) and (b) of 38 C.F.R. § 3.344 should be applied in reduction cases involving an evaluation that continued at the same level for five years or more, and section (c) of 38 C.F.R. § 3.344 should be applied in cases where the RO reduces an evaluation that was in effect for less than five years. The five-year period is calculated from the effective date of the rating to the effective date of the reduction. See Brown, supra. At the time the rating reduction became effective from May 18, 2016, the 30 percent rating for the Veteran's cervical spine condition had been continuously in effect for less than five years. As such, provisions of 38 C.F.R. § 3.344 section (c) are applicable. Pursuant to 38 C.F.R. § 3.344 (c), reexaminations disclosing improvement of a condition warrant a reduction in the evaluation that is assigned to the condition. See also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Turning now to the propriety of the reduction, in the September 2012 Rating Decision, the AOJ assigned a 30 percent rating for the Veteran's cervical spine spondylosis. The evaluation was based on the forward flexion being limited to 15 degrees or less and consideration of functional loss due to factors, such as pain and weakness, which were reported on the May 2012 VA examination. On that examination, the Veteran reported constant pain in his neck. By the evening, he limited his activity due to the pain. Neck pain was aggravated by movement, lifting carrying more than 10 pounds, sitting for more than two hours, and walking. Forward flexion was reported to be 20 degrees, with pain noted at 15 degrees. After repetitive use, his flexion was decreased to 15 degrees. The Veteran's cervical spine condition is evaluated under Diagnostic Code 5243, intervertebral disc syndrome (IVDS). The criteria direct that IVDS be evaluated either on the total duration of incapacitating episodes over the past 12 months or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation. Here, the Veteran's cervical spine condition was evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a rating of 30 percent is warranted when there is forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine. On the May 2014 VA examination, the Veteran described his flare-ups as increasing pain in his neck and arms after performing activities, making it difficult for him to drive or carry items. His forward flexion was reported to be 25 degrees, with pain noted at 20 degrees. Less movement than normal, painful movement contributed to the Veteran's disability. In an April 2015 Neurology Clinic Note, the Veteran reported constant neck pain. The pain was worse in the morning and was associated with stiffness of the neck. In a May 2015 VA treatment note, it was reported that the Veteran's neck would "get stuck" when performing activities of daily living. See January 2022 VA Medical Treatment Records. On the May 2016 VA examination, the Veteran reported his neck pain to have worsened over the last three to four weeks. He had severe daily pain and endorsed difficulty in heavy lifting. Forward flexion was reported to be 40 degrees. Pain was noted on examination and it caused functional loss. Less movement than normal contributed to his disability. In an August 2016 Physical Medicine Rehab Consult Note, the Veteran reported aching pain and tingling sensation in the mid to low cervical area, with symptoms being worst on the left side of his neck. See January 2022 VA Medical Treatment Records. The Veteran and his representative have asserted inadequacies in the May 2016 VA examination, explaining that the Veteran's neck condition is much more severe than noted in the report. See January 2022 Third Party Correspondence. As explained previously, the Board has to determine by a preponderance of the evidence that the reduction was warranted. After a thorough consideration of the evidence of the record, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran's condition improved. The Board notes that the Veteran's forward flexion was not limited to 15 degrees or less. However, other factors must be considered when determining whether a higher rating is warranted. The Veteran reported worsening of his pain at the May 2016 VA examination. The evidence shows that the Veteran experiences constant severe pain in his neck that is associated with stiffness. There are instances where the Veteran is not able to move is neck after performing certain daily activities. A 30 percent rating is the maximum evaluation available for limitation of motion and favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 30 percent rating contemplates any episodes in which the Veteran's disability is so severe that he cannot move his neck. The evidence shows that when performing activities, the Veteran experiences stiffness and episodes in which his neck is "stuck." As the medical and lay evidence also supports a 30 percent rating, the Board finds that the preponderance of the evidence does not show improvement of his condition. Therefore, the Board finds that the reduction is improper. The 30 percent for cervical spine condition is restored, effective May 18, 2016. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.