Citation Nr: 22011771 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 18-45 307 DATE: March 1, 2022 ORDER The reduction in the evaluation of lumbar spine degenerative changes status-post laminectomy from 40 percent to 20 percent effective October 1, 2016, was proper; entitlement to restoration of a 40 percent rating for the Veteran's disability from October 1, 2016, is denied. FINDING OF FACT At the time of the July 2016 rating decision implementing the rating reduction, the rating had been in effect for more than five years, and the medical and lay evidence reflected sustained material improvement under the ordinary conditions of life in the Veteran's lumbar spine degenerative changes status-post laminectomy. CONCLUSION OF LAW The criteria for reduction of a disability rating for lumbar spine degenerative changes status-post laminectomy from October 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2000 to June 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). Following the RO's rating reduction in the July 2016 rating decision, the Veteran timely appealed requesting a hearing before the Board. Said hearing occurred in October 2021, a transcript of which has been associated with the claims file and reviewed. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The reduction in the evaluation of lumbar spine degenerative changes status-post laminectomy from 40 percent to 20 percent effective October 1, 2016, was proper; entitlement to restoration of a 40 percent rating for the Veteran's disability from October 1, 2016, is denied. The Veteran contends his lumbar spine disability rating should not have been reduced. The Board finds reduction was proper. Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). In this case, the RO complied with the due process requirements of 38 C.F.R. § 3.105(e) by issuing a March 2015 rating decision and letter proposing a rating reduction for the Veteran's lumbar spine disability. The Veteran was then given the appropriate time within which to provide additional evidence. Thereafter, the RO promulgated the July 2016 rating decision, implementing the proposed reduction. The Board is aware of the Veteran's contention in the March 2017 notice of disagreement (NOD) that he did not receive notice of the proposed reduction. The Board finds the argument unpersuasive. Indeed, the evidence of record cuts against his contentions. In the absence of clear evidence to the contrary, it is presumed that VA properly mailed notice of a rating decision to an appellant in care of his representative "in the normal course of business." Kuo v. Derwinski, 2 Vet. App. 662, 665 (1992). The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process. Jones v. West, 12 Vet. App. 98, 100-02 (1998); see also Warfield v. Gober, 10 Vet. App. 483, 486 (1997). The presumption of regularity is not absolute and may be rebutted. An appellant's bare statement of non-receipt of mail, however, without more, is not the type of "clear evidence" that can rebut the presumption of regularity. Rather, the presumption of regularity may be rebutted where there is (1) evidence that VA used an incorrect address on the mailing, or (2) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the decision. Davis v. Principi, 17 Vet. App. 29, 37 (2003). If the presumption of regularity is rebutted by the Veteran, the Secretary has the burden to show that the Board or RO decision was mailed in the appropriate manner "or that the appellant actually received a copy of the decision." Sthele v. Principi, 19 Vet. App. 11, 19 (2004). Even if an AOJ decision is not issued properly pursuant to 38 U.S.C. § 5104(a) (through the "normal course of business"), any "defects of decisional notice are cured when the record demonstrates that the claimant and his representative actually received notice of the decision." Sellers v. Shinseki, 25 Vet. App. 265, 276-77 (2012). The means by which a claimant received the decision is moot "where actual receipt is established." Id. at 277. Here, the record lacks evidence that the relevant notice was sent to an incorrect address or returned as undeliverable. Indeed, the March 2015 notice was sent to the Veteran's last address of record, which is the same addressed referenced on his corresponding claim for benefits. Other unrelated correspondence within the year thereafter were also sent to the same address without being returned as undeliverable. The Board acknowledges that the Veteran's correspondence and mailings were sent to different addresses in early 2016 and thereafter; however, the record lacks any evidence that the March 2015 notice was undeliverable. There was no other possible or plausible address for the Veteran at the time of the March 2015 notice. Further, of significance, while the Veteran raised the issue of notice as part of the March 2017 NOD, during the October 2021 Board hearing, neither the Veteran nor his representative presented any evidence or contentions related to notice. Based on the aforementioned, the Board concludes that the presumption of regularity has not been rebutted. Thus, as the notice and due process requirements of 38 C.F.R. § 3.105(e) have been met, no further discussion in this regard is necessary. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. As will be discussed in more detail below, the Board finds reduction of the Veteran's disability rating was proper and restoration of the prior rating is not warranted. Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344(a) and (b), which set forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). Here, the Veteran had a rating in effect for five years or more. Therefore, 38 C.F.R. § 3.344(a) and (b) are applicable. Finally, in determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. The Veteran's lumbar spine disability is rated under DC 5242 as 40 percent disabling from October 21, 2009, and 20 percent disabling from October 1, 2016. DC 5242 provides that degenerative arthritis of the spine is to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula are made 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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Turning to the relevant evidence of record, the Veteran was afforded a VA examination in January 2010 during which he reported experiencing limitations in walking. See January 2010 VA examination. He denied experiencing falls, stiffness, fatigue, spasms, decreased motion, paresthesia, numbness, weakness, bowel or bladder complaints, or erectile dysfunction. He endorsed pain in the lower back and legs constantly that is exacerbated by physical activity. During flare-ups, he experiences functional impairment which is described as severe pain in the lower back and muscle weakness in the leg. He denied incapacitating episodes in the past 12 months. Overall functional impairment was noted to be limited mobility and pain in the low-to-mid back and legs. Initial ROM testing revealed flexion to 20 degrees, extension to 20 degrees, right and left lateral flexion to 10 degrees, and right and left rotation to 10 degrees. Repetitive use testing was completed without additional ROM loss. The Veteran was noted to be unemployed and the effect of the condition on his daily activity was light housework. Another VA examination occurred in January 2011 during which the Veteran reported that he can walk 300 yards on average. See January 2011 VA examination. He endorsed falling due to his spine condition. He reported symptoms of stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. His pain was noted to be in the knees, ankles, and hips and exacerbated by physical activity and stress with relief by rest. Flare-ups resulted in functional impairment which is described as pain and limited ROM as "unable to bend and walk." Functional impairment was described as an inability to walk and bend. Initial ROM testing revealed flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. Repetitive use testing was completed with only a 5 degree additional limitation in flexion. The lumbar spine was found not to be additionally limited by fatigue, weakness, lack of endurance, or incoordination. The examiner found that the conditions effect on the Veteran's usual occupation was an inability to stand or walk for a long period of time and an inability to bend. In October 2014, the Veteran contended his lumbar spine disability had worsened thereby entitling him to a higher disability rating. In response, the Veteran was afforded another VA examination in January 2015. See January 2015 VA examination. The Veteran endorsed daily pain that is exacerbated by prolonged sitting, standing, and repetitive bending. Initial ROM testing revealed flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. Repetitive use testing was completed without additional ROM loss. The Veteran did not have localized tenderness, guarding, or spasm. Functional impairment was noted to be decreased movement, pain on movement, and disturbance of locomotion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or with repeated use. The Veteran was noted to have intervertebral disc syndrome (IVDS) without incapacitating episodes over the past 12 months. The Veteran was noted to be able to perform all activities of daily living, but his condition did impact the ability to perform occupational tasks such as standing, walking, lifting, and sitting. Most recently, the Veteran was afforded a VA examination in July 2018 during which he reported experiencing constant back pain that worsened over the past 18 months. He endorsed experiencing flare-ups three times a month for 1-2 days, but occasionally up to a week, precipitated by prolonged standing, sitting, and walking. Functional loss was noted to be an inability to sit, stand, or walk. Initial ROM testing revealed flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. Pain was noted on examination with every movement. Observed repetitive use testing was completed without additional ROM loss. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time or during flare-ups. The examiner reasoned that it is not possible to determine, without speculation, an estimated loss of ROM because there is no conceptual or empirical basis for making such a determination without directly observing the function under these conditions. IVDS was again noted without incapacitating episodes in the past 12 months. The examiner found the Veteran's lumbar spine disability impacts his ability to work. He was noted to have a desk job in security with 0-1 weeks of work time lost in the last 12 months. He was found to be unable to perform work requiring prolonged standing, sitting, or walking. Treatment records throughout the period in consideration reference continued lower back pain with complaints of worsening. See February and May 2018 VA treatment records. In response to the 2018 VA examination, the Veteran stated that he has actually missed 6 to 7 weeks of work due to back pain and was bedridden for at least 4-5 weeks of that time. See September 2018 statement. He explained that he is unable to bend over to take his child out of the crib and is limited in how long he is able to hold her. During the October 2021 Board hearing, the Veteran contended that the 90 and 80 degree flexions obtained during the VA examinations are not reflective of his mobility. He testified that he is no longer able to sit for "any given length of time" that allows him to be gainfully employed. He stated that it is difficult to care for his young children because he cannot bend over. He reported being unable to tie his shoes. When prompted regarding frequency of flare-ups, the Veteran stated that he is in constant pain, but it worsens with use and weather changes. He did not report any specific precipitating factors for flare-ups. The Veteran testified that he has incapacitating episodes at least 2-3 times per month, if not more. When asked whether a physician has prescribed bedrest, the Veteran stated that he has stopped presenting the issue to medical providers. In light of the evidence above, the Board finds that the reduction in disability ratings for the Veteran's lumbar spine disability was proper as the evidence of record at the time of the reduction and the testimony thereafter demonstrates that there was "actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." Indeed, the medical evidence of record at the time of the reduction reflects sustained material improvement. Here, the record contains four separation VA examinations to determine whether there was an actual improvement in the Veteran's lumbar spine disability. Of great significance, three of the VA examinations align with a 20 percent or 10 percent disability rating while only one more nearly approximated a 40 percent disability rating. While all of the VA examinations of record present varied results in terms of ROM, the evidence of record indicates the 2010 examination was an outlier and inconsistent with the remaining results when considering the Veteran's entire disability picture. The Board acknowledges that the 2010 VA examination ROM results are consistent with a 40 percent disability rating. Only a year later, however, in 2011, the most limited ROM results more nearly approximated a 10 percent disability rating revealing improvement in the Veteran's mobility. Thereafter, the 2015 VA examination more nearly approximated a 20 percent disability rating. Most recently, the 2018 VA examination more nearly approximated a 10 percent disability rating. While the Veteran is now in receipt of a 20 percent disability rating, the evidence of record indicates periods of time where only a 10 percent disability rating was warranted. When considering the 2011, 2015, and 2018 VA examinations versus the 2010 VA examination, the Board finds the RO appropriately determined a reduction was warranted based on sustained material improvement. Indeed, each examination after 2010 demonstrates marked improvement in flexion even with repetitive use. The Board also highlights that ROM for other planes of motion also revealed material improvement since the 2010 VA examination. The 2011 VA examination revealed improved ROM in extension, right and left lateral flexion, and right and left rotation. Additionally, ROM testing for extension, right and left lateral flexion, and right and left lateral rotation in 2015 was improved in comparison to 2010. Most recently in 2018, ROM testing for right and left lateral flexion and right and left lateral rotation were improved in comparison to the 2010 examination. Thus, based on the evidence of record, there was a marked improvement in the Veteran's lumbar spine disability following the 2010 VA examination. Additionally, the Veteran's function impairments and occupational impact over the course of the VA examinations of record indicate actual improvement. In 2010, the Veteran was noted to be unemployed with daily activity limited to light housework. In 2011, the Veteran was noted to be unable to stand or walk for a long period of time with an inability to bend. In 2014, the Veteran was noted to be able to perform all activities of daily living with limitations in sitting, standing, walking, and lifting. In 2018, the Veteran was noted to be working with an inability to perform work requiring prolong standing, sitting, or walking. The Board finds these functional and occupational impacts reflect improvement from 2010 to 2018. Indeed, most recently, the Veteran was employed, albeit with limitations. While the Veteran continues to be impaired due to his lumbar spine disability, he went from being limited to light housework to being able to work with limitations in sitting, standing, walking, and lifting. The Board acknowledges the Veteran's testimony after the reduction rating decision during which he stated he is no longer able to work and that he missed 6-7 weeks of work at the time of the 2018 VA examination, including a period of bedrest. The record, however, lacks any evidence of physician prescribed bedrest. Should the Veteran seek an increased disability rating for his lumbar spine disability, he may file a supplemental claim naming any new evidence which might show a higher rating is warranted. The Veteran has since contended that the 2018 VA examination failed to provide a ROM loss estimate during flare-ups. The Board notes the RO's assignment of a 20 percent disability rating was based upon the 2015 VA examination during which the Veteran denied experiencing flare-ups. Further, the Veteran's testimony and statements surrounding flare-ups has been largely inconsistent. Indeed, some VA examinations of record indicated flare-ups while others denied flare-ups. While the Veteran testified to experiencing flare-ups, when questioned regarding frequency thereof, he stated that he was in "constant pain." Based on the evidence of record, the Board acknowledges that the Veteran experiences worsened pain and decreased mobility with increased activity and changes in weather, however, said limitations do not warrant restoration of a 40 percent disability rating. When describing flare-ups, the Veteran endorsed an inability to bend over. Normal flexion is noted to be 0 to 90 degrees. Initial ROM in 2018 warranted a 10 percent disability based on 80 degrees flexion. The Veteran is already in receipt of a 20 percent disability rating for flexion of 30 degrees but not greater than 60 degrees. Thus, to the extent the Veteran endorses experiencing flare-ups, he is already in receipt of a higher disability rating which would account for additional ROM loss. The evidence of record does not indicate such limited ROM during flare-ups of 30 degrees or less flexion or favorable ankylosis of the entire thoracolumbar spine. Indeed, the Veteran remains mobile, albeit with pain and limitations. The Board also recognizes that the Veteran has stated that his symptoms have not improved, but rather worsened, however, this contention is not supported by the medical evidence of record. Contrarily, the evidence of record reflects a sustained improvement from 2010 through 2018. The Veteran contended that he experiences incapacitating episodes and periods of bedrest. Treatment records, however, fail to reflect a prescription for bedrest from a medical provider. Further, all of the VA examinations of record indicated that the Veteran did not experience incapacitating episodes within 12 months of the examinations. Thus, the Board finds the Veteran's assertions of incapacitation and bedrest are not supported by the evidence of record. Overall, the entirety of the evidence shows improvement in the Veteran's lumbar spine disability which has been maintained under the ordinary conditions of life. The Board again notes that in determining whether a reduction was proper, it is required to focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer, 2 Vet. App. 281-82. Here, VA treatment records and several VA examinations conducted subsequent to the rating reduction reflected sustained improvement in the disability; range of motion was still limited but not such that a higher evaluation would be warranted. The Board is aware of the necessity to review the entire record of examinations and medical history. While consideration has been given to the Veteran's treatment records before the RO at the time of reduction as well as after, said records lack any reference to ROM testing. They do corroborate the Veteran's complaints of continued pain. In this case, after affording due consideration to all of the evidence of record, no doubt remains that the Veteran experienced sustained material improvement. Accordingly, the Board finds that the rating reduction from 40 percent to 20 percent was proper. The evidence supports a finding against reinstatement of the previous 40 percent disability rating and, therefore, there is no benefit of the doubt to resolve in the Veteran's favor. (Continued on the next page) In conclusion, the reduction in the evaluation of lumbar spine degenerative changes status-post laminectomy from 40 percent to 20 percent effective October 1, 2016, was proper; therefore, entitlement to restoration of a 40 percent rating for the Veteran's disability from October 1, 2016, is denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.