Citation Nr: 22012336 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 15-16 587 DATE: March 3, 2022 ORDER Reduction in the schedular rating from 40 percent to 20 percent for degenerative disc disease (DDD) of the lumbar spine was improper; restoration of the 40 percent rating for DDD of the lumbar spine, effective October 21, 2021 is granted. REMANDED Entitlement to an increased rating in excess of 40 percent for DDD of the lumbar spine is remanded. FINDING OF FACT At the time of the October 2021 rating decision, which reduced the rating for the Veteran's DDD of the lumbar spine, the evidence did not show that improvement of this service-connected disability would be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction in the schedular rating for DDD of the lumbar spine was improper; the criteria for restoration of the 40 percent rating for DDD of the lumbar spine are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105 (e), 3.344, 4.2, 4.14.14, 4.71a Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1997 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in September 2021 for additional development. The matter is now returned to the Board for further appellate review. There has not been substantial compliance with previous remand directives as to the issue of an increased rating for DDD of the lumbar spine. During the pendency of the appeal, the RO granted an earlier effective date for the grant of a total disability rating based on individual unemployability (TDIU) to April 25, 2012, the date of the claim for TDIU and increased ratings. As the Veteran has been granted TDIU for the entire period on appeal the issue is no longer before the Board. Reduction in the schedular rating from 40 percent to 20 percent for degenerative disc disease (DDD) of the lumbar spine was improper; restoration of the 40 percent rating for DDD of the lumbar spine, effective October 21, 2021 is granted. During the pendency of the appeal, the RO reduced the Veteran's DDD of the lumbar spine from 40 percent to 20 percent. As such, the Board will address whether this reduction was proper. There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). 38 C.F.R. § 3.105 (e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines if the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made. First, a rating action proposing the reduction must 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. The Veteran also must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level, and to request a hearing in accordance with the provisions of 38 C.F.R. § 3.105 (e)(i)(2). Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the Veteran setting forth the reasons for the reduction and detailing the evidence upon which it is based. 38 C.F.R. § 3.105 (e)(i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105 (e)(i)(2)(i). In this case, the reduction in the disability rating for DDD of the lumbar spine did not result in a reduction of compensation payments, therefore, the provisions of 38 C.F.R. § 3.105 (e) are not applicable to the Veteran's appeal. Substantively, the standard to be applied to a rating reduction decision depends on how long the rating has been in effect. When a rating has continued at the same rating level for five years or more, the underlying VA examination supporting a reduction must be as "full and complete" as the VA examination that formed the basis for the original rating, and there must be a finding that the condition at issue is not likely to return to its previous level. 38 C.F.R. § 3.344 (a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be made if the evidence indicates that it is reasonably certain that improvement of the underlying injury or condition will be maintained under the "ordinary conditions of life." 38 C.F.R. § 3.344 (a). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer, at 281-82. Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also, Brown v. Brown, 5 Vet. App. 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Moreover, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See, Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is different from an increased rating issue. See, Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). By way of procedural history, in a January 2007 rating decision the Veteran's disability rating for DDD of the lumbar spine was reduced to 40 percent effective April 1, 2007. In an October 2021 rating decision, the disability rating was reduced to 20 percent, effective October 21, 2021. The 40 percent disability rating for DDD of the lumbar spine was in effect for more than five years. Reductions of evaluations which have been in effect for five years or more must be based on a "full and complete" examination that establishes that it is "reasonably certain that the improvement will be maintained." See 38 C.F.R. § 3.344 (a) with 38 C.F.R. § 3.344 (c). There are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Brown v. Brown, 5 Vet. App. 413, 420-421 (1993). Specifically, VA regulation 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. Furthermore, VA regulation 38 C.F.R. § 4.13 provides that 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. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see 38 C.F.R. §§ 4.2, 4.10. A claim that a rating reduction was improper must be resolved in the Veteran's favor unless the Board concludes that the evidence weighs against the claim. Brown, 5 Vet. App. at 421. The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, the DDD of the lumbar spine was rated under the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 After review of the lay and medical evidence of record, a material improvement of DDD of the lumbar spine has not been demonstrated, including under the ordinary conditions of life and work; therefore, the rating reduction was not proper. Thus, the criteria for restoration of a 40 percent rating, effective October 21, 2021, have been met. Here, the RO relied on an October 2021 back VA examination to support its rating reduction. The October 2021 back VA examination report notes the examiner reviewed the Veteran's medical history and examined the Veteran prior to completing the report. The examiner noted that the Veteran's current lumbar spine disability had progressed or gotten worse since its onset. It was noted that the Veteran experienced severe back pain during flare ups that occurred two to three times a month and with repeated use over time. The Veteran reported that due to pain and weakness he could not bend down or lay flat. He was limited in his ability to walk, sit, or stand for extended periods of time and he also reported difficulty with dressing, personal hygiene and getting in and out of the shower. On initial range of motion testing, the examiner noted the Veteran's forward flexion was limited to 35 degrees and pain was noted in all ranges of motion. Passive range of motion was not performed due to the fact that it may have caused the Veteran severe pain or the risk of further injury. The examiner indicated that pain and fatigability significantly limited functional ability with repeated use over time and during flare-ups, but the examiner failed to estimate range of motion in degrees for the lumbar spine during these times. The examiner simply noted that the Veteran's limited range of motion during the examination spoke to more significant limitation during overuse and flare-ups and the Veteran would likely not have much range of motion which would significantly limit his ability to get in and out of bed or bend over. The Board finds this examination is not "full and complete" as the examiner failed to provide an estimate of additional range of motion in degrees lost during flare-ups and with repeated use over time using the Veteran's assertions of functional impairment during these times. Additionally, the examination findings support that the Veteran's lumbar spine disability has not exhibited sustained improvement as the report notes the disability has worsened since onset and is likely to worsen during repeated use over time and during flare-ups. Thus, the Board finds that the October 2021 VA examination was not "full and complete" and did not show an improvement in ability to function under ordinary conditions of life and work and, as such, the reduction in rating from 40 percent to 20 percent was improper. Restoration of the Veteran's 40 percent rating for DDD of the lumbar spine from October 21, 2021 is warranted. REASONS FOR REMAND Entitlement to an increased rating in excess of 40 percent for DDD of the lumbar spine is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding this issue. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its September 2021 decision, the Board indicated that a new VA examiantion was required to determine the severity of the Veteran's DDD of the lumbar spine. The examiner was instructed to perform all necessary test and provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. Review of the October 2021 VA examination report reflects this was not accomplished. First, the examiner indicated that pain and fatigability significantly limited functional ability with repeated use over time and during flare-ups, but the examiner failed to estimate range of motion in degrees for the lumbar spine during these times. Additonally, the examiner failed to obtain any diagnostic tests of the Veteran's lumbar spine and instead relied on x-ray findings from 2012 to 2015. As such, the Board finds a remand is required to comply with previous remand directives. Additionally, the October 2021 VA examiner noted that during a flare-up and after repeated use over time, the Veteran had significant limitation due to fatigability and worsening (severe) pain secondary to muscle spasms and he would likely not have much range of motion which would significantly limit his ability to get in and out of bed or bend over. As the evidence suggests that the Veteran may experience the functional equivalent of ankylosis, on remand the examiner should address whether the Veteran's symptoms resulted in the functional equivalent of ankylosis during a flare-up. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (holding that evidence of functional equivalent of ankylosis during a flare-up requires consideration of rating factors in 38 C.F.R. §§ 4.40 and 4.45. Thus, the Board finds a remand is also required to assess the Veteran's functional loss due to flare-ups and after repeated use over time. The matter is REMANDED for the following action: 1. Return the record to the VA examiner who conducted the October 2021 VA examination, if available. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. If the October 2021 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If ankylosis is not found, the examiner should opine as to whether the Veteran's range of motion is so diminished as a result of pain so that it is the functional equivalent of ankylosis, the examiner should also determine whether the Veteran's additional impairment on flare-ups or repetitive use is the functional equivalent of favorable or unfavorable ankylosis of the lumbar spine. The examiner's report must include a complete rationale for the opinions provided. (Continued on the next page) 2. After completing the requested actions, and any additional actions considered warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran should be given a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.