Citation Nr: 22019196 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 18-34 456 DATE: March 31, 2022 ORDER The appeal concerning the propriety of a reduction in rating for a low back disability, effective October 1, 2017, is denied. FINDING OF FACT The manifestations of the Veteran's low back disability were shown to have improved under the ordinary conditions of life at the time of the rating reduction by multiple VA examinations. CONCLUSION OF LAW The reduction in the rating for a low back disability from 40 percent to 20 percent, effective October 1, 2017, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.105 (e), 3.343(a), 3.344, 4.1-4.7, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to March 1980 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran appeared at an informal pre-determination conference where he submitted lay evidence in the form of written statements from his spouse and friend, describing the Veteran's difficulties and the severity of the back disability. Those written statements are of record. In June 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. Whether a reduction in rating for a service-connected low back disability from 40 percent disabling to 20 percent was proper The Veteran contends that the rating for a low back disability should not have been reduced from 40 percent to 20 percent, effective October 1, 2017. A disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. 38 C.F.R. § 3.344; Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Where a disability rating has been in effect for five years or more, a rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher rating. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the mental or physical condition is clearly shown, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The provisions of 38 C.F.R. § 3.344(a) do not apply to disabilities for which the assigned ratings have been in effect for less than five years. Those disabilities are not considered stabilized and are subject to improvement. Re-examination disclosing improvement in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344(c). In any rating reduction case, not only must it be determined that an improvement in a disability had actually occurred at the time of the reduction, but also that the improvement actually indicates an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A reduction in rating must be based upon review of the entire history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.10. VA must ascertain whether the evidence indicates an actual change in the disability and whether the examination reports indicating that change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited to medical indicators of improvement. VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Additionally, the examination reports on which a reduction are based must be adequate. Tucker v. Derwinski, 2 Vet. App. 201 (1992). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated. 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 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). The Veteran does not contend, and the evidence does not show, any failure in compliance with the procedural requirements for rating reductions. The proper procedure was followed in the March 2017 notification letter and July 2017 rating decision for notifying the Veteran of the bases for the reduction, allowing him the opportunity to attend a pre-reduction hearing, and allowing him the opportunity to submit additional evidence. The Veteran does not contend that there was a procedural deficiency. The reduction was effective at the appropriate time period following the proposal. 38 C.F.R. § 3.105. The Veteran's herniated nucleus pulposus, L5-S1 with lumbar spondylosis and intervertebral disc syndrome is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243. 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 rating 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. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Service connection for a low back disability was established with a 20 percent rating, effective March 12, 1995, for recurring attacks of moderate IVDS. In November 2011, the rating was increased to 40 percent effective April 22, 2010. A March 2017 rating decision proposed to reduce the rating from 40 percent to 20 percent. A July 2017 rating decision enacted that reduction from 40 percent to 20 percent, effective October 1, 2017. A December 2021 rating decision assigned an increased rating of 40 percent, effective December 1, 2021. At a September 2011 VA examination, the Veteran reported pain, decreased mobility, and problems with lifting, carrying, prolonged standing, sitting, and running. Pain resulted in decreased efficiency, and missed time at work, which affected productivity. He had a part-time sedentary job and had flare-ups on prolonged sitting. He stood up to stretch and walk often. He had problems entering and exiting a car and driving long distances. He had one incapacitating episode in the last year which lasted two weeks. The condition interfered with recreational activities, vigorous household chores, and future forms of entertainment which require continuous demanding physical endurance. Range of motion testing found flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. The range of motion was additionally limited by 10 degrees of flexion following repetitive use and by 30 percent during flare ups due to pain, stiffness, and lack of endurance. At an August 2012 VA examination, range of motion testing found forward flexion of 60 degrees with painful motion at 60 degrees; extension to 30 degrees with painful motion at 30 degrees; right lateral flexion to 30 degrees with painful motion at 30 degrees; left lateral flexion to 30 degrees with painful motion at 30 degrees; right lateral rotation to 30 degrees with painful motion at 30 degrees; and left lateral rotation to 30 degrees with painful motion at 30 degrees. Range of motion was equal or greater after repetitive use testing. Contributing factors to functional impairment included less movement than normal and painful movement. The examiner indicated that the Veteran did not have IVDS, guarding, muscle spasms, or muscle atrophy on examination. The Veteran claimed worsening pain. He worked full time in valet parking. The examiner noted that flexion was at least 80 degrees when the Veteran put on shoes. The Veteran did not report flare ups. The examiner opined that the disability had moderately severe effects on physical employment and mild effects on sedentary employment. At an October 2014 VA examination, range of motion testing found forward flexion of 70 degrees with painful motion at 60 degrees; extension to 25 degrees with painful motion at 20 degrees; right lateral flexion to 25 degrees with painful motion at 25 degrees; left lateral flexion to 30 degrees with painful motion at 30 degrees; right lateral rotation to 30 degrees with painful motion at 30 degrees; and left lateral rotation to 30 degrees with painful motion at 30 degrees. No significant additional loss of range of motion as shown after repetitive use testing. Contributing factors to functional impairment included less movement than, pain on movement and interference with sitting, standing, and/or weight-bearing. The examiner indicated that the Veteran did not have IVDS, guarding, muscle spasms, or muscle atrophy on examination. The Veteran did not report flare ups. The Veteran reported being found unemployable by the Social Security Administration. An October 2014 MRI showed L5-S1 right small disk herniation abutting the nerve root, in the lateral gutter, without much change on imaging from 2012 to 2015. At a November 2016 VA examination, range of motion testing found forward flexion to 60 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Following repetitive use testing, range of motion found forward flexion to 60 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 25 degrees. There were no ankylosis, muscle atrophy, guarding, or muscle spasms on examination. The examiner noted IVDS, but that it did not result episodes requiring prescribed bed rest in the 12 months prior to the examination. The Veteran reported becoming very stiff in the low back if he sat too long. The Veteran reported flare ups that required walking hunched over, resting in bed, and limping the rest of the day. The examiner noted that a lack of endurance significantly limited functional ability with repeated use over a period of time. The examination was medically consistent with the Veteran's description of flare ups. During flare ups, range of motion was described as flexion to 60 degrees, extension to 0 degrees, right and left lateral flexion to 10 degrees, and right and left rotation to 20 degrees. The disability affected the ability to work as the Veteran used a cane and could not carry items. He had fatigability. That would complicate physically demanding employment. Sedentary employment requiring long periods of sitting without an opportunity to stand and move around would not be tolerated. Sedentary employment ADA-complying accommodations should be well-tolerated. The Veteran was again examined in December 2021 and based on that examination, a December 2021 rating decision assigned an increased 40 percent rating, effective December 1, 2021. However, that Board finds that evidence, over four years after the date of the reduction under consideration is not sufficiently contemporary enough in time to be relevant to a determination as to whether there was improvement under the ordinary conditions of life in 2017. That examination did not offer any retrospective evidence that would be relevant evidence of the severity of the disability in 2017 or contemporary to 2017. The Board notes that the August 2012, October 2014, and November 2016 VA examination reports show an improvement in the Veteran's forward flexion that is greater than 30 degrees, including after repetitive use testing. The examiners all concluded that the low back disability would impact the ability to obtain gainful employment. It was highlighted that sedentary employment would also be challenging for the Veteran. The Veteran previously reported challenges with walking, prolonged standing, and running as it pertained to work, but that was not mentioned in the examinations showing improvement. The Veteran also denied flare ups in August 2012 and October 2014. While he reported flare ups in November 2016, they were not found to limit function sufficiently to warrant a higher rating, as limitation of flexion to 30 degrees of less was not shown. Evidence available to the AOJ at the time the reduction was effectuated shows the Veteran exhibited an increased range of motion and no incapacitating episodes requiring prescribed bedrest as a result of IVDS that would warrant any higher rating. The Veteran had a part-time sedentary job in September 2011. He had a full time job in valet parking in August 2012. In October 2014, the Veteran reported being found disabled by the Social Security Administration. However, that finding is not binding on VA. The Board finds that a rating in excess of 20 percent was not warranted. The evidence did not show limitation of flexion on three consecutive examinations, even with consideration of flare ups, pain, and other limiting factors. Therefore, the Board finds that the weight of the evidence of record indicates that there was improvement under the ordinary conditions of life such that limitation of flexion did not meet the criteria for a 40 percent rating, and the evidence did not show ankylosis or a condition equivalent to ankylosis. The Board finds that the weight of the evidence supports a finding that the reduction was warranted. The November 2011 rating decision in which the Veteran was assigned a 40 percent rating was primarily based on forward flexion of 10 degrees. Since that time, the Veteran consistently submitted statements regarding the impact of the low back disability on his daily life. The Veteran also participated in the informal pre-determination conference in which he submitted additional buddy statements. The Veteran is competent to report symptoms such as pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds his reports credible. However, the evidence of record supports a finding of sustained improvement and a proper reduction by the RO, as the Veteran's forward flexion was consistently measured above 30 degrees. Accordingly, the Board finds that the weight of the evidence of record supports a finding that there was sustained, material improvement that continued under the ordinary conditions of life and work as shown by the August 2012, October 2014, and November 2016 VA examinations. The reduction was not based on a single examination, but multiple examinations in a period of over four years that all demonstrated improvement following the September 2011 examination. The medical evidence of record is consistent with the findings of the examinations. The Board finds that the weight of the evidence demonstrates that reduction was proper. After full compliance with due process protections, the Agency of Original Jurisdiction properly reduced the rating for a low back disability, from 40 percent to 20 percent, effective October 1, 2017. Therefore, the Board finds that the reduction was proper, and the appeal for restoration must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.