Citation Nr: 22010002 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 15-10 351A DATE: February 22, 2022 ORDER The reduction of the Veteran's 20 percent rating to 10 percent for his lumbar spine disability was improper and the 20 percent rating is restored. A 40 percent rating, but no higher, for the Veteran's lumbar spine disability as of August 18, 2015, is granted. A temporary 100 percent rating for convalescence from December 20, 2017, to February 20, 2018, is granted. A rating higher than 10 percent for left lower extremity radiculopathy prior to March 21, 2016, and higher than 20 percent thereafter is denied. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. May 2011 and March 2015 rating decisions reduced the Veteran's lumbar spine disability rating from 20 percent to 10 percent. 2. The Veteran was not provided notice of the reductions of his lumbar spine disability rating and at the time of the reductions the Veteran's lumbar spine had not shown actual improvement. 3. Prior to August 18, 2015, the Veteran' lumbar spine disability more closely approximated limitation of flexion from 30 degrees to 60 degrees. 4. As of August 18, 2015, the Veteran's lumbar spine pain more closely approximated limitation of flexion to 30 degrees or less; ankylosis has not been shown at any time. 5. The Veteran underwent lumbar spine surgery on December 20, 2017, which required a convalescence period. 6. Prior to March 21, 2016, the Veteran's left lower extremity radiculopathy was mild; thereafter his radiculopathy was moderate; moderately severe or severe radiculopathy was not shown. CONCLUSIONS OF LAW 1. The reduction from 20 percent to 10 percent for lumbar spine disability throughout the Veteran's appeal (effective January 4, 2011, and effective December 22, 2014) were improper and the 20 percent rating is restored prior to August 18, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10, 4.13, 4.104, Diagnostic Code (DC) 5242. 2. As of August 18, 2015, the criteria for a 40 percent rating for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10, 4.13, 4.104, DC 5242. 3. From December 20, 2017, to February 20, 2018, the criteria for a temporary total rating for convalescence are met. 38 U.S.C. §§ 5101(a), 5110(b), 1155; 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155(a), 3.157(b), 3.400(o), 4.30. 4. The criteria for a rating higher than 10 percent prior to March 21, 2016, and higher than 20 percent thereafter for left lower extremity radiculopathy are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2 4.7 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2006 to December 2006 and from August 2008 to August 2009. He also had National Guard service. In May 2018 and September 2021, the Veteran testified before the undersigned Veterans' Law Judge. A copy of the transcript is associated with the record. Rating Reductions There are specific notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the Veteran in a reduction case are set forth under 38 C.F.R. § 3.105(e) and must be followed by VA before issuing a final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). 38 C.F.R. § 3.105(e) requires: (1) that the Veteran be sent a proposed rating decision setting forth all material facts and reasons for the rating reduction; and (2) that the Veteran be given 60 days to present additional evidence demonstrating that the rating should be continued at its present level. These specific notice requirements take precedence over the more general notice requirements found in the VCAA. See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one...."); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-77 (2005). However, such notice is warranted only when there is a reduction in "compensation payments currently being made." See 38 C.F.R. § 3.105(e). In this matter, the Veteran's lumbar spine disability rating was reduced on two occasions, via a May 2011 rating decision (from 20 percent to 10 percent) and via a March 2015 rating decision (again from 20 percent to 10 percent). The Veteran was not notified of either of the proposed reductions of his lumbar spine rating. The May 2011 rating decision which reduced his lumbar spine disability did so as of January 4, 2011, based on a VA examination of that date. The March 2015 rating decision similarly reduced his 20 percent rating which was restored as of December 2011 in a concurrently issued statement of the case (SOC) to 10 percent effective December 2014. The Board notes that the March 2015 SOC reduction did not effect a change in the Veteran's combined rating or disability payments. As such, notice of that reduction was not warranted. The May 2011 rating decision also granted service connection for posttraumatic stress disorder (PTSD). Thus, at the time of the reduction, the Veteran's grant of service connection for PTSD resulted in the Veteran not having a reduction of payments being made. However, had the Veteran not coincidentally being service connected at the same time his reduction took place, his benefits would have been reduced. Thus, when focusing on the Veteran's lumbar spine disability without the contemporaneous benefit of his PTSD service connection grant, the Veteran's compensation payments would have been affected. Resolving doubt in the Veteran's favor, the Board finds that the proper procedural notice requirements necessary to reduce the Veteran's rating were not met. On that basis alone, the May 2011 reduction of the Veteran's 20 percent rating for his lumbar spine disability was not proper. As to the reduction contained in the March 2015 rating decision/SOC, the Board notes that Congress has provided that a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When VA reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a disability rating, VA is required to comply with several general VA 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; Brown v. Brown, 5 Vet. App. 413, 420 (1993). Section 4.1 provides: "It is... essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. § 4.2 provides: "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." Thus, "[t]hese provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran's disability." Brown, 5 Vet. App. 413, 420 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Moreover, 38 C.F.R. § 4.13 provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms." Based on the regulations quoted above, VA is required in any rating-reduction case 'to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown, 5 Vet. App. at 421; Schafrath, supra. Furthermore, 38 C.F.R. § 4.10 provides that "[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment," and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work...Thus, 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." After review of the record, the Board does not find that the Veteran's lumbar spine disability as of the March 2015 rating decision/SOC showed improvement. The Veteran had submitted numerous statements which showed that his lumbar spine disability caused him significant distress. He had reported that he was unable to work due to back pain numerous times in his VA medical records. He had also reported, and medical records confirm that he had gone to the emergency room regarding back pain. See February 2014 private medical ER record and December 2014 VA examination. He reported an inability to perform several activities of daily living due to back pain. See December 2014 VA examination. He reported flare-ups. Thus, though the Veteran's range of motion in 2015 appeared to have improved, his credible reported symptoms and supporting medical records do not show that his lumbar spine disability had improved to such an extent as to support a reduction in his lumbar spine rating. As a result of the foregoing, the Board finds that both of the reductions of the Veteran's lumbar spine ratings from 20 percent to 10 percent were not proper. Accordingly, the 20 percent evaluation for the Veteran's lumbar spine disability is restored as though the reduction had not occurred. See 38 C.F.R. § 3.344(a), (b); Schafrath, 1 Vet. App. at 589; Brown, 5 Vet. App. at 413. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Lumbar Spine The Veteran sought a higher rating for his lumbar spine disability in October 2010. His lumbar spine, pursuant to the Decision above, was assigned a 20 percent rating as of his 2009 grant of service connection and is rated under DC 5242. DC 5242 provides that, 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, unfavorable ankylosis of the entire spine is assigned a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine is assigned a 50 percent rating. At the outset the Board notes that there are no records of evidence, including the Veteran's own testimony and the testimony of his witness and lay statements submitted into evidence that indicate the Veteran had any degree of ankylosis in his lumbar spine. As such, a 100 or 50 percent for the Veteran's lumbar spine disability pursuant to DC 5242 is not supported by the record or warranted at any time during the course of the Veteran's appeal. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is assigned a 40 percent rating. 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. 38 C.F.R. § 4.71a, Plate V. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). After review of the evidence of record, and in consideration of the Veteran's hearing testimony and the testimony of the witnesses, the Board finds that the overall disability picture presented by the Veteran more closely approximates a 40 percent rating for his lumbar spine as of August 18, 2015. As of August 18, 2015, the Veteran's lumbar spine while not showing a limitation of forward flexion, did show a significant increase in pain such to approximate a 40 percent rating. On August 18, 2015, the Veteran presented to a private hospital emergency room with back pain which radiated into his left lower extremity. He reported difficulty walking. Furthermore, a concurrently performed MRI showed that his lumbar spine had a herniation with a disc fragment pushing against his S1 nerve root. His hospital notes indicated that he presented with a marked increase in pain. He underwent spinal injection. Prior to August 18, 2015, the record does not support a finding that the Veteran's pain more closely approximated a rating higher than 20 percent. His July 2010 and April 2014 VA medical records show he continued to report activity, including running and walking. His 2010 MRI did not show impingement or herniation. Furthermore, the Veteran appeared to still be working at during this time. VA examination conducted in December 2014 did not indicate that the Veteran's lumbar spine had sustained increase in severity such to approximate a 40 percent rating more closely. Though the Veteran's 2014 medical records show he reported periods of severe pain, the records did not indicate that he had sustained severe pain to warrant a 40 percent evaluation. As such, the Board finds that a 40 percent rating for the Veteran's lumbar spine disability as of August 18, 2015, is warranted. Additionally, the Board notes that the Veteran underwent lumbar spine surgery on December 20, 2017. His private medical records show that he was on restricted activity and pain medication following his surgery until February 2018. The Board finds that this qualifies the Veteran for a temporary total rating under 38 C.F.R. § 4.30 based on the need for convalescence following the December 2017 lumbar spine surgery. Left Lower Extremity Radiculopathy The Veteran's left lower extremity radiculopathy was assigned a 10 percent rating prior to March 21, 2016, and a 20 percent rating thereafter pursuant to DC 8520. DC 8520 mandates that mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. After review of the record, the Board does not find any evidence which supports ratings higher than the ones currently assigned for the Veteran's left lower extremity radiculopathy. A June 2015 VA medical record showed the Veteran had mild episodic numbness in his left thigh. His June 2016 VA examination noted his radiculopathy was moderate. Finally, a November 2019 radiculopathy examination also found the Veteran's sciatic nerve radiculopathy to be moderate. There were no indications that his numbness had progressed to such a degree that his condition could be considered more severe than either mild or moderate as indicated in the medical records noted above. The Veteran has also not indicated that his radiculopathy ratings are not an accurate representation of the severity of his condition. In his September 2021 hearing, the Veteran stated that his radiculopathy was maintaining and had not necessarily gotten worse. As such, there is no evidence of record to support a finding that higher ratings for the Veteran's radiculopathy are warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND TDIU The Board sincerely regrets having to incur additional delay in the complete adjudication of the Veteran's claims. However, while the evidence of record does indicate that the Veteran's service connected disabilities, including his PTSD and lumbar spine disability, may render him unable to sustain gainful employment, the record is not complete as to when, specifically, the Veteran stopped working. Additionally, the percentages assigned in the Decision, above, impact the Veteran's combined disability rating and his TDIU eligibility. As such, remand is necessary to obtain additional information about the Veteran's work history and to implement the ratings as assigned in this Decision. The matter is REMANDED for the following actions: 1. Send the Veteran VA Forms 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) and request that the Veteran fill out these TDIU forms and submit them back to the AOJ. 2. Once the above directive has been completed and the Veteran has returned the requested documents, the RO has implemented the disability ratings as assigned in this Decision, and completing any other development necessary, readjudicate the claim of entitlement to a TDIU considering all pertinent evidence and legal authority. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.