Citation Nr: 22017176 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-44 641 DATE: March 24, 2022 ORDER The reduction of the disability rating for service-connected degenerative disk disease cervical spine from 30 percent to 20 percent effective January 30, 2017, was not proper; a rating of 30 percent, effective January 30, 2017, is restored. A rating in excess of 30 percent for degenerative disk disease cervical spine is denied. FINDINGS OF FACT 1. In a February 2017 rating decision, the RO reduced the rating for the Veteran's service-connected degenerative disk disease cervical spine from 30 percent to 20 percent, effective January 30, 2017. The rating was later increased back to 30 percent, effective September 6, 2019, with a rating of 20 percent assigned again from March 17, 2020, by a November 2021 rating decision. 2. At the time of the February 2017 rating decision, the 30 percent rating for the Veteran's service-connected degenerative disk disease cervical spine had been in effect since October 24, 2006, a period of more than 5 years at the time of the rating reduction. 3. The evidence of record at the time of the February 2017 rating decision did not clearly reflect a material improvement in the Veteran's service-connected degenerative disk disease cervical spine which resulted in an improvement in his ability to function under the ordinary conditions of life and work. 4. The Veteran's degenerative disk disease cervical spine has not manifested in any ankylosis of the spine. CONCLUSIONS OF LAW 1. The reduction of the rating for degenerative disk disease cervical spine from 30 percent to 20 percent, effective January 30, 2017, was not proper. Restoration of the 30 percent disability rating for degenerative disk disease cervical spine, effective January 30, 2017, is warranted. 38 U.S.C. §§ 1155, 5112, 5107; 38 C.F.R. §§ 3.105, 3.344, Diagnostic Codes (DCs) 5242-5237. 2. The criteria for a rating in excess of 30 percent for degenerative disk disease cervical spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5242-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1991 to May 1994. This case was previously before the Board in March 2019 and October 2021, when the issues listed above were remanded for additional development. A November 2021 supplemental statement of the case was most recently issued and the claims are once again before the Board. 1. Rating reduction for service-connected degenerative disk disease cervical spine. The Veteran contests the reduction of his disability rating for his degenerative disk disease cervical spine from a 30 percent rating to 20 percent, effective January 30, 2017. A November 2021 rating decision subsequently increased the Veteran's rating back to 30 percent, effective September 6, 2019, and then assigned a 20 percent rating from March 17, 2020. The law provides that 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. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a RO reduces a veteran's disability rating without following applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). 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). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 250 (2000). In certain rating reduction cases, such as when the rating is in effect for more than five years, recipients of compensation are to be afforded great protections. 38 C.F.R. § 3.344. Those regulations provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344(c) specify that those considerations are applicable for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities that have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. Under the criteria of § 3.344, the RO must find the record clearly reflects a finding of material improvement in the underlying disability and it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a), (b); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown, 5 Vet. App. at 413. 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. 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). As the reduction of the Veteran's rating from 30 percent to 20 percent did not result in a decrease in the Veteran's total monthly compensation payments, advance notice pursuant to 38 C.F.R. § 3.105(e) for the reduction was not required. The Board now addresses whether the reduction was proper based on the evidence then of record. The Board must focus on the 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 demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In the instant case, the provisions of 38 C.F.R. §§ 3.344(a) and (b) apply, which govern the reduction of ratings in effect for five years or more, given that the 30 percent rating for the Veteran's degenerative disk disease cervical spine had been in effect for more than 5 years. See Brown, 5 Vet. App. at 420-22 (finding that the duration of a rating, in rating reduction claims, is measured from the effective date of the prior rating to the effective date of the reduced rating). In this regard, in a May 2007 rating decision, the RO increased the Veteran's degenerative disk disease cervical spine to 30 percent, effective October 24, 2006. In the February 2017 rating decision, the RO reduced the 30 percent rating to 20 percent, effective January 30, 2017. Notably, 38 C.F.R. § 3.344(a) requires that, for a rating reduction to be proper, material improvement in the disability must be shown, and that evidence must make it reasonably certain that such improvement will be maintained under the ordinary conditions of life. Further, the RO must ensure that the entire record of examinations and the medical-industrial history is reviewed to ensure that the examination, on which the reduction was based, was full and complete, including the examiner's review of the entire case history. 38 C.F.R. § 3.344(a). The evidence does not show a material improvement in the service-connected degenerative disk disease cervical spine at the time of the reduction. Indeed, there is competent evidence that the Veteran's degenerative disk disease cervical spine had not improved at the time of the February 2017 rating decision. In reaching this conclusion, the Board is mindful that, in reducing the disability rating from 30 percent to 20 percent, the RO had of record a January 2017 VA examination. The Board recognizes that the range of motion findings do not appear to meet the criteria for a 30 percent disability rating under the applicable diagnostic codes (Diagnostic Codes 5242-5237). Crucially, however, the Board observes that in a rating reduction claim, the central inquiry should be whether there was improvement in the service-connected disability, rather than whether the Veteran's symptoms met the rating criteria for a specific percentage evaluation as in an increased rating claim. See Peyton v. Derwinski, 1 Vet. App. 282 (1991). In the February 2017 rating decision, the RO failed to make a specific determination that there was material improvement in the Veteran's ability to function under the ordinary conditions of life and work. Additionally, in the January 2017 examination report the Veteran reported that his neck hurts all the time, and that he experienced flare-ups of his cervical spine. The examiner noted pain on examination with functional loss. Notably, the examiner indicated that the examination was not being conducted during a flare-up. Moreover, the examiner stated that she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. The examiner specifically noted that it was outside of her scope of professional comportment and expertise to answer this question. The Board notes that this examination had less than complete findings. Since the burden is on VA to show that a rating reduction is warranted, and, for the reasons discussed above, VA failed to meet this burden, the 30 percent rating for degenerative disk disease cervical spine must be restored. Dofflemyer, 2 Vet. App. 277 (1992) (holding that where VA has reduced a veteran's disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required). The Board finds the restoration of the 30 percent disability rating is warranted, effective from January 30, 2017. 2. Entitlement to a rating in excess of 30 percent for degenerative disk disease cervical spine. As noted above, the Board has restored the Veteran's 30 percent disability rating for his degenerative disk disease cervical spine, effective January 30, 2017. The Board has reframed the issue to reflect this award for the entire period on appeal. The Board now considers whether a rating in excess of 30 percent is warranted for the Veteran's degenerative disk disease cervical spine. 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. The Veteran's cervical spine disability is rated under 38 C.F.R. § 4.71a, DCs 5242-5237. The Veteran is presently rated at 30 percent for the entire period on appeal. Effective February 7, 2021, 38 C.F.R. § 4.71a was revised, including DCs 5242 and 5243. Relevant to the low back and neck claims, DC 5242 was revised from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome" and DC 5243 was revised from "intervertebral disc syndrome" to "intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25." The Veteran's cervical spine disability has consistently been rated under DCs 5242-5237. Although the Veteran has been diagnosed with intervertebral disc syndrome of the cervical spine (as will be noted in more detail below), he does not have incapacitating episodes due to his cervical spine sufficient to warrant a compensable rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In light of the foregoing, the Board's analysis will focus primarily on the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. In this regard, the RO has already granted the Veteran entitlement to service connection for sensory left upper extremity radiculopathy carpal tunnel and sensory right upper extremity radiculopathy (dominant) carpal tunnel. The Veteran has not appealed the ratings assigned for these neurological manifestations. As such, no further discussion of these problems is warranted herein. The Veteran has no other neurological problems associated with the cervical spine disability. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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. The Board finds that a rating higher than 30 percent for the Veteran's degenerative disk disease cervical spine is not warranted. A January 2017 VA examination report noted no ankylosis or intervertebral disc syndrome (IVDS) of the cervical spine. In July 2017, September 2019, and March 2020 VA examination reports it was noted that the Veteran did not have ankylosis of the spine. Although IVDS was noted on these examination reports, the examiners specifically indicated that the Veteran had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician. This evidence of record does not a support a rating in excess of 30 percent. Additionally, the Veteran's medical records are silent for any findings of ankylosis or IVDS with bed rest prescribed by a physician to warrant a higher rating. Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected cervical spine disability. As 30 percent is the highest schedular rating for limitation of motion of the cervical spine, (absent ankylosis) the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45) pertaining to functional loss are not for application. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has also considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, given the Veteran is receiving the maximum rating based on limitation of motion of the cervical spine, and a higher rating requires unfavorable ankylosis of the entire cervical spine, which is not present, there is no prejudice in any VA examination that may have failed to comply with § 4.59 as interpreted in Correia. The Board finds that a review of the evidence during the period on appeal does not support a finding of ankylosis of the cervical spine or the functional equivalent of ankylosis to warrant a 40 percent rating. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 30 percent for degenerative disk disease cervical spine at any point during the appeal period. The claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.