Citation Nr: 22011992 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-53 519 DATE: March 2, 2022 ORDER The reduction of the ratings for the Veteran's thoracolumbar spine disability and associated bilateral lower extremity radiculopathy, effective September 1, 2015, was not proper and is void ab initio. REMANDED Entitlement to a rating in excess of 60 percent for a thoracolumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to October 18, 2021, and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT A June 2015 rating decision, which reduced the disability ratings for a thoracolumbar spine disability from 60 to 10 percent, right leg radiculopathy from 40 percent to noncompensable, and left leg radiculopathy from 10 percent to noncompensable effective September 1, 2015, did not make a finding with respect to whether the Veteran's apparent disability improvement reflected an improvement in his ability to function under the ordinary conditions of life and work, and is therefore void ab initio. CONCLUSION OF LAW The thoracolumbar spine and bilateral lower extremity radiculopathy rating reductions effected by a June 2015 AOJ rating decision were improper and restoration of the initial ratings is warranted. 38 U.S.C. § 1155, 5103; 38 C.F.R. § 3.102, 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1978 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2015 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a September 2021 hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. 1. The propriety of the ratings reductions effective September 1, 2015 The Veteran filed a claim for an increased rating for his lower back in October 2013. The AOJ issued a January 2014 decision proposing to reduce his lumbar spine rating from 60 percent to 10 percent, his right lower extremity radiculopathy rating from 10 percent to noncompensable, and his left lower extremity radiculopathy rating from 40 percent to noncompensable. These reductions were finalized by a June 2015 rating decision, effective September 1, 2015. The Veteran then filed a July 2015 notice of disagreement appealing these decreases, which was ultimately appealed to the Board. Although the October 2018 Statement of the Case only addressed the Veteran's lumbar spine rating, the rating criteria regarding the spine instructs the rater to evaluate objective neurologic abnormalities "separately, under an appropriate diagnostic code." 38 C.F.R. § 4.71a, General Formula for Rating Injuries and Diseases of the Spine, Note (1). The notice of disagreement also identified the decision effecting the reduction and included all three issues. As such, the Board has jurisdiction over whether the reduction of all three ratings was proper. 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. With regard to the initial question, the Board observes that the rating reduction did result in a reduction of VA compensation being paid to the Veteran as his overall, combined disability rating was reduced from 90 percent to 70 percent. When a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105 (e), (i). If additional evidence is not received within that period, 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 a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. In the present case, the Board finds that the procedural requirements of 38 C.F.R. § 3.105 were satisfied with regard to these rating reductions. Notice was sent in a January 2014 rating decision and letter, both of which informed the Veteran of the proposed rating reductions. The letter further explained the affect the proposed rating reductions would have on the Veteran's combined disability evaluation and informed the Veteran of his options to submit additional evidence and request a personal hearing. By way of a June 2015 rating decision, the AOJ reduced the Veteran's disability rating, effective September 1, 2015. The AOJ satisfied the procedural requirements by allowing a 60-day period to expire before assigning the reduction effective date. 38 C.F.R. § 3.105. The Board shall therefore move on to whether the reductions were warranted based on the evidence of record. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran's 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. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). Such review requires VA 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. 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. See Faust v. West, 13 Vet. App. 342, 350 (2000). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the 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. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In this case, the existing ratings had been in effect for less than 5 years. Accordingly, the provisions under 38 C.F.R. § 3.344(a) and (b) do not apply in this case. As to disability ratings in effect for less than five years, adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). The Veteran was granted entitlement to service connection for his lumbar spine in May 2010, with an increase to 60 percent effective from a February 2012 VA examination, the same date as his service connection for bilateral lower extremity radiculopathy. He was assigned initial ratings for his right and left leg of 10 and 40 percent, respectively. These ratings were based on a June 2012 VA examination recording diagnoses of intervertebral disc syndrome (IVDS) and degenerative disc disease of the thoracic spine with moderate instability. This examination also noted instability of station, disturbance of locomotion, and interference with sitting, standing and weight bearing as well as radiculopathy involving the sciatic nerve, mild on the right and severe on the left. Finally, the examiner reviewed imaging of the Veteran's spine documenting thoracolumbar degenerative changes. Notably, the AOJ assigned a 60 percent rating for degenerative disc disease of the thoracolumbar spine under the Formula for Rating IVDS Based Upon Incapacitating Episodes. The applicable criteria provide for separately rating the orthopedic and neurologic complications of thoracolumbar spine IVDS and, once combined, determined whether a higher rating could be met when considering the Formula for Rating IVDS Based Upon Incapacitating Episodes. The AOJ assignment of the maximum rating for the Formula for Rating IVDS Based Upon Incapacitating Episodes and assigning separate ratings for the neurologic complications is not consistent with the rating instructions. After his claim for an increased rating, the Veteran was afforded a December 2013 VA examination, during which he reported chronic low back issues for years. The examiner noted no flareups or decreased functionality after repetitive use over time, but acknowledged functional loss including less movement than normal and pain on movement. The examiner found no signs of symptoms of lower extremity radiculopathy, indicating all testing was normal. The examiner did not review imaging of the thoracolumbar spine or address the Veteran's diagnosis of degenerative disc disease of the thoracic spine with moderate instability. Finally, the examiner stated that the Veteran did not have a diagnosis of IVDS. Based on this examination, the AOJ reduced the Veteran's thoracolumbar spine rating to 10 percent and both lower extremity radiculopathy ratings to noncompensable. After 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 Veteran'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. The Board additionally notes that, from a factual point of view, the AOJ's reductions are not supportable. Private treatment records from the time between the reductions being finalized and made effective indicate that the Veteran was undergoing regular physical therapy two to five times per week for his lumbar spine and lower extremities. May 2015 records note lower back pain and reports of "locking up" during flareups, while those from June 2015 record increased lumbar pain, decreased range of motion, decreased lower extremity strength bilaterally and diminished left knee reflexes. Finally, a 2015 MRI indicated severe bilateral neuroforaminal stenosis. The Board also notes that after a recent detailed neurological examination, the Veteran's bilateral lower extremity radiculopathy ratings were restored, and in the case of the right, actually increased. As the AOJ action to reduce the rating did not comply with the requirements of Faust, it is void ab initio and the 60 percent lumbar spine, 40 percent left lower extremity, and 10 percent right lower extremity ratings are restored, effective September 1, 2015. REASONS FOR REMAND 1. Entitlement to a rating in excess of 60 percent for a thoracolumbar spine disability is remanded. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to October 18, 2021, and in excess of 40 percent thereafter is remanded. 3. Entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy is remanded. At the September 2021 Board hearing, the Veteran reported worsening thoracolumbar spine and accompanying radiculopathy symptoms, to include increased falls and ongoing physical therapy. The Veteran stated that his previous lumbar spine examiner "gave up" on the examination after he had difficulty completing several tests and that he was willing to participate in an additional examination. He also reported that due to his service-connected disabilities he was only able to work 8 to 10 hours per week cleaning bathrooms for a friend's business, although he was paid for a full 16 hours due to his employer's generosity and recognition of his status as a veteran. The Board finds that the most recent VA spine examination, from August 2018, is inadequate for rating purposes. It appears the examiner did not have the Veteran's full medical records for review, and while the Veteran reported severe radiculopathy symptoms the examiner stated he did not manifest radiculopathy despite noting "the claimant is unable to participate in any exam" and "he cannot bend." Therefore, remand for an additional VA spine examination is required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination. However, a material change in the condition or problems/inconsistencies in the prior examination(s) can so warrant). See also Green v. Derwinski,1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). As noted above, the rating criteria regarding the spine instructs the rater to evaluate objective neurologic abnormalities "separately, under an appropriate diagnostic code." 38 C.F.R. § 4.71a, General Formula for Rating Injuries and Diseases of the Spine, Note (1). The Veteran was afforded a neurological examination in October 2021, which resulted in his current 40 percent ratings for bilateral lower extremity radiculopathy. However, as the October 2018 VA spine and radiculopathy examination is inadequate for rating purposes, the Board finds that a retrospective opinion from the clinician performing the new thoracolumbar spine examination is necessary in order to properly decide the Veteran's claim for an increased rating. 4. Entitlement to a TDIU The Veteran has reported being employed part time at an occupation in which he is regularly paid for more hours than he works due to his friendship with the owner and status as a veteran. He also stated that he has not worked full time since 2013, and submitted documents indicating he became too disabled to work on July 1, 2013. However, as the Board is remanding the issues of entitlement to higher ratings for the Veteran's thoracolumbar spine and bilateral lower extremity radiculopathy for a retrospective opinion, it will defer adjudication of entitlement to a TDIU as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Attach to the claims file any VA and private treatment records. Specifically, with the aid of the Veteran, attempt to obtain any private treatment and physical therapy records from 2016 to the present that are relevant to his current claims. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his thoracolumbar spine disability and any associated radiculopathy. The Veteran's claims file should be reviewed, and all necessary testing conducted. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. 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. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. With respect to the Veteran's bilateral lower extremity radiculopathy, provide a retrospective opinion as to whether, since January 2014, the Veteran has manifested neurologic complications of a thoracolumbar spine disability and, if so, to identify the nature and severity of such complication(s). The examiner is specifically requested to clarify the Veteran's pre-2013 diagnoses of IVDS, degenerative disc disease of the thoracic spine with moderate instability, and bilateral lower extremity radiculopathy in light of the 2018 examiner's diagnosis of mild thoracic osteoarthritis without radiculopathy. The examiners attention is directed towards the Veteran's private physical therapy records from May through July 2015, report of radiculopathy symptoms during the October 2018 VA examination (in which no testing was conducted), and imaging from 2012 through the present. 3. Thereafter, readjudicate the Veteran's claims, to include entitlement to a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.